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Editorial 8 MIN READ

When the process server shows up: a 30-day playbook

What to do in the first hour, first week, and first month after your LLC gets served

The Editors
Staff, Incorporator.org
8 min read Updated
Contents 6 sections
  1. What you are actually holding
  2. The first 72 hours
  3. Retain counsel, or don't, on purpose
  4. The response: answer, move to dismiss, or remove
  5. What not to do
  6. Sources

certified envelope, a sheriff's deputy at the front desk, or a three-page PDF forwarded by your registered agent. Service of process starts a clock that almost always runs 20 to 30 days, and missing it is how defendants become default judgments.

This is the playbook for handling a service of process letter from the moment it lands to the moment an answer is on file. It assumes you are a small or mid-size LLC or corporation, not a Fortune 500 with a litigation department on call.

What you are actually holding

Most service of process packets contain two documents stapled or clipped together. The first is a summons, which is the court's order telling the defendant it has been sued and must answer by a date certain. The second is a complaint, which is the plaintiff's numbered allegations and the relief it wants. Some states issue a citation that performs the summons function by a different name (Texas is the common example). If what you are holding is a subpoena, you are not a defendant; you are a witness or custodian of records, and the clock is different (usually 14 days to object, with production on the date stated on the face).

Under Federal Rule of Civil Procedure 12(a)(1)(A)(i), a defendant served with a summons and complaint in federal court has 21 days to serve a response. State courts vary. California gives 30 days under Code of Civil Procedure § 412.20(a)(3). New York gives 20 days if served personally in-state and 30 if served any other way, per CPLR § 320(a). Delaware Chancery defaults to 20 days under Ct. Ch. R. 12(a). Texas gives until 10:00 a.m. on the Monday following the expiration of 20 days after service, under Tex. R. Civ. P. 99(b).

The response window does not begin on the day of service. Under FRCP 6(a)(1)(A), you exclude the day of the triggering event and count every day after, including weekends, and if the last day is a Saturday, Sunday, or legal holiday the period runs to the next business day. State rules usually track this; do not assume.

The first 72 hours

Write the exact date and time of receipt on the cover sheet. If a sheriff handed it to a receptionist, get the receptionist's name and the time from the front-desk log. This matters. Defective service is a real defense, and you cannot plead defective service if you have no record of how service happened.

Within the first day, check that your registered agent has the same packet you have. Most LLC statutes, Delaware's among them, designate the registered agent as the entity's agent for service of process. See 8 Del. C. § 132(a), which requires every Delaware corporation to maintain a registered agent in the state "upon whom any process against the corporation may be served." The LLC equivalent is 6 Del. C. § 18-105. Commercial registered agents forward service the same business day by email or overnight mail. If you received the packet from the sheriff directly, confirm your agent also received a copy from the plaintiff; plaintiffs occasionally serve the entity at its principal office without going through the agent, which can be defective in some states.

If your registered agent forwarded the packet late (more than two business days after they received it), ask them in writing for the intake timestamp. Keep that email. If the lateness ate meaningful time off your response clock, that is a live breach-of-service-agreement matter and a reason to switch agents after this dispute is resolved. Missed or slow-forwarded service is the single most common failure mode of commodity-priced registered-agent services, and it is the reason the guide on Delaware in April 2016 is skeptical of the $50-a-year tier for a first entity.

Do not call the plaintiff. Do not email the plaintiff's lawyer to "understand what this is about." Anything you say is a statement by a party-opponent under Federal Rule of Evidence 801(d)(2) and is admissible against you. If the complaint is a shakedown and you are tempted to settle it for nuisance value, have a lawyer make the call.

Retain counsel, or don't, on purpose

In most states a corporation or LLC cannot appear pro se. A natural person can represent themselves, but an entity must appear through a licensed attorney. The rule traces to Rowland v. California Men's Colony, 506 U.S. 194 (1993), which held that 28 U.S.C. § 1654's right to proceed "personally" does not extend to corporations. States follow suit; see, for example, Delaware's Transpolymer Industries, Inc. v. Chapel Main Corp., 582 A.2d 936 (Del. 1990) (per curiam), holding a corporation may appear in Delaware courts only through counsel. If your LLC is the defendant and you file a pro se answer, the court will strike it and enter default unless you retain counsel in time.

That said, not every served matter deserves the same response. The realistic tiers:

Small-claims court (typically under $10,000 depending on state) does not require corporate counsel in most jurisdictions and is usually answerable by a general manager in person. Californians use Code of Civil Procedure § 116.530; New York allows the same for commercial claims up to $5,000 under NYC Civil Court Act § 1809.

Anything in state civil court or federal court above small-claims needs a lawyer. The standard engagement is a retainer against hourly billing. Expect the first $5,000 to $15,000 to go to reading the complaint, calendaring the response, running a conflicts check, and drafting either an answer, a motion to dismiss, or a notice of removal.

If the claim is below the cost of defense and clearly a fee-shift or demand-letter play, ask your lawyer about an early settlement offer before incurring motion costs. Some cases are cheaper to resolve than to win.

The response: answer, move to dismiss, or remove

Three procedural doors are open in the first 21 to 30 days.

An answer admits or denies each numbered paragraph of the complaint and raises affirmative defenses. Federal Rule 8(b) requires the defendant to "admit or deny the allegations asserted against it by an opposing party." A general denial is permitted only if the defendant intends in good faith to deny all allegations, including jurisdiction. Affirmative defenses that are waived if not pleaded in the answer include statute of limitations, res judicata, waiver, release, and failure of consideration. Rule 8(c) lists nineteen of them.

A motion to dismiss under Rule 12(b) challenges the complaint on threshold grounds before filing an answer. The useful subsections for a small business defendant are 12(b)(2) (no personal jurisdiction), 12(b)(3) (improper venue), 12(b)(5) (insufficient service of process), and 12(b)(6) (failure to state a claim upon which relief can be granted). The 12(b)(6) standard after Ashcroft v. Iqbal, 556 U.S. 662 (2009), requires the complaint to contain enough factual matter to state a claim to relief that is "plausible on its face," not merely conceivable. A thin complaint with conclusory allegations is vulnerable to a 12(b)(6) motion; a complaint with specific facts usually is not. Filing a 12(b) motion tolls the answer deadline; under Rule 12(a)(4), a defendant whose motion is denied has 14 days from notice of the court's action to answer.

Removal to federal court is the third door, and it has a 30-day fuse. Under 28 U.S.C. § 1446(b), a defendant in a state-court action may remove to the federal district court for the district embracing the state court within 30 days of receipt of the initial pleading, provided federal jurisdiction exists. Diversity jurisdiction requires complete diversity of citizenship and more than $75,000 in controversy (28 U.S.C. § 1332(a)). Federal question jurisdiction requires the claim to arise under federal law (28 U.S.C. § 1331). Defendants miss the 30-day removal window and lose the federal forum routinely. If the case has a federal hook and the plaintiff filed in state court, talk to counsel about removal within the first week.

What not to do

Do not ignore the packet. A default judgment entered against an LLC is collectible from the LLC's assets, can pierce in fraud or alter-ego cases, and will show up in every lender's due diligence for the life of the entity. Vacating a default under FRCP 55(c) requires "good cause," which courts do not hand out.

Do not file a reflex counterclaim without a basis. Frivolous filings draw Rule 11 sanctions, and a counterclaim with no evidentiary support is a gift to plaintiff's counsel at deposition.

Do not discard the envelope. Postmarks and the green certified-mail card are evidence of the date and method of service.

Do not let employees talk about the case outside the privilege. Internal emails are discoverable. The phrase "let me loop in legal" is the right default, not a cliché.

If the registered agent is the source of a missed forwarding and it happens a second time, fire the agent. The switch itself is a one-page filing in most states and costs under $100. A registered agent that cannot reliably forward service is not doing the only job you hired it for.

Rule of thumb: count the days on a calendar, retain counsel by day seven, and file something that preserves your position by day fourteen.

Sources

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