A summons is the document by which a party against whom a claim is made (defendant or respondent) is notified that a complaint or petition has been filed against them in the court. It also informs them how many days they have to answer that claim.
Ways of Serving a Summons
- Personal Service
What is service of summons?
It is the act commonly known as “serving,” by which the summons document is delivered to the defendant or respondent with a copy of the complaint or petition.
Who can serve a summons?
Those who can serve a summons are:
- the marshal of the court
- anyone over the age of 18 who can read and write and who is not a party to the case
Who cannot serve a summons?
Those who cannot serve a summons are:
- people who are a party to the case
- people who have an interest in the case
- the plaintiff (person filing the complaint or petition in the court)
- the plaintiff’s attorney
- relatives of the plaintiff or of plaintiff’s attorney
How is a summons served?
The summons and a copy of the complaint or petition are served simultaneously, as follows:
- if the defendant or respondent is of legal age, it is delivered to this party personally
- if the defendant or respondent is under the age of 14 (0-13 years), it will be given to a parent with parental rights or to their guardian
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- if the defendant or respondent is between the ages of 14 and 20, the documents will be delivered to the underage child and to their parent or guardian
- if the defendant or respondent is legally incapacitated and has been appointed a guardian, the documents will be given to both
- if the defendant or respondent is detained in a penal institution, the documents will be delivered to them and to the head of the institution
If the defendant or respondent is not among the categories mentioned, the plaintiff should retain the services of an attorney to carry out the process of serving the summons.
How many days does the plaintiff have to serve the summons?
The plaintiff has 120 days to serve the summons, from the date on which the complaint or petition was filed with the clerk of the court. If it is not served within the term provided, the judge shall order that the case be dismissed without prejudice. This means that the person who filed the complaint or petition may file the case again.
What does the person who served the summons have to do after delivering the document to the person summoned?
The person serving notice of process (the person who delivers the summons with a copy of the complaint or petition) must complete or fill out the corresponding blanks on the back of the summons. In addition, they must make a statement under oath before a notary or before the clerk of any court, swearing that the information stated in the document concerning service is true and correct. Once sworn, the document is delivered to the clerk of the court where the case was filed as proof that the summons was served. This process must be carried out within the same term the defendant has to file an answer to the complaint or petition.
Are there any requirements and costs associated with swearing the certificate of service on the summons with the clerk of the court?
A valid photo ID and an internal revenue stamp of $5.00 must be presented in order for the clerk of the court to administer the oath.
What is a negative certificate of service?
It is when the summons and the copy of the complaint or petition cannot be delivered to the defendant or respondent.
- Waiver of Service of Summons
What is a waiver of service of summons?
The plaintiff or petitioner may request the defendant or respondent to waive the service of the summons. If the defendant or respondent does not waive service, the party must be served personally or by publication. This method cannot be used to serve minors, incapacitated persons, the Commonwealth of Puerto Rico, its agencies, corporations, administrative units, municipalities, or officers in their official or personal capacity.
What are the requirements for requesting a waiver of personal service?
The plaintiff must notify the defendant in writing that a complaint has been filed against them and request that they waive their right to be served.
To do so, the plaintiff must:
- Send the defendant or authorized person, by certified mail with return receipt requested and restricted delivery, the following:
- An original and a copy of the Notice of Complaint and Motion for Waiver of Service of Summons form (OAT 1579)
- a pre-addressed envelope
- a copy of the complaint with the date and time stamp of the filing with the court
- Advise of the legal consequences of complying with or rejecting the waiver.
- Advise that, if the person accepts the waiver, they must sign the document and certify that it was voluntary and not a product of coercion or violence, and return it within 20 days from the date on which the request was sent, or 30 days from the date on which the request was sent if the defendant is outside of Puerto Rico.
What are the consequences of not completing the waiver of personal service of summons within the term provided?
If the defendant does not return the completed form within the term provided, the court will order that they pay any expenses incurred by the plaintiff in the serving the summons, unless good cause is shown for not having filled out the form. In addition, the defendant will pay the attorney’s fees associated with the drafting of the motion requiring payment for the costs of serving the summons.
What do I have to do if the defendant fills out the waiver of service and sends within the established deadline?
The plaintiff will file the waiver the defendant filled out with the clerk of the court where the complaint or petition was filed.
When should summons be served by publication?
If the defendant or respondent is outside of Puerto Rico, did not waive personal service of the summons, and their whereabouts are unknown, they must be served by publication.
To serve a summons by publication, retaining the services of an attorney is recommended because this is very technical process.
Revised: February 2023