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Editorial 8 MIN READ

A certified envelope showed up. Now what?

Service of process, start to answer, in the order a calm person would do it

The Editors
Staff, Incorporator.org
8 min read Updated
Contents 8 sections
  1. What actually came in the envelope
  2. Day one to day three: log, notify, preserve
  3. Day three to day seven: retain counsel, scope the case
  4. Day seven to day fourteen: answer, move, or remove
  5. What the registered agent is actually for
  6. Things people do that make everything worse
  7. The rule of thumb
  8. Sources

ervice of process is the piece of paper that tells you a lawsuit now involves you, and it almost always arrives in one of two forms: a certified-mail envelope from your registered agent, or a sheriff's deputy at the door. The clock the envelope starts is short, usually twenty or thirty days, and the single biggest mistake people make is treating the first seventy-two hours as a grieving period rather than a working one.

This piece is a decision tree for the human who just opened that envelope. It assumes a closely held LLC or corporation with a real registered agent, a state-court complaint, and a deadline measured in business days that started running whether or not you noticed.

What actually came in the envelope

Three documents travel together, and the names matter. A summons is the court's command to appear and respond; it carries the caption, the case number, and the deadline. A complaint is the plaintiff's story of what you did, pleaded as numbered allegations. A subpoena is different: it is a command to produce documents or to appear at a deposition, and you may receive one without being a party to the case. A citation is the Texas and Louisiana term for the summons, and occasionally elsewhere for a court notice in a probate or juvenile matter. Read what you have before you react to it.

The response window varies by jurisdiction and by the document. Under the Federal Rules of Civil Procedure, a served defendant has twenty-one days to answer a complaint, or sixty if the defendant waived formal service under Rule 4(d). State courts vary: Delaware Superior Court allows twenty days, California thirty, New York twenty or thirty depending on method. Under Federal Rule of Civil Procedure 6(a) and the parallel state rules, the day of service itself does not count; the clock starts the next day and runs through intermediate weekends, with the deadline rolling forward if it lands on a weekend or holiday. Note the exact calendar date of receipt on the envelope itself, in pen, and count from there.

Day one to day three: log, notify, preserve

The first thing to do is write down when you received the documents, how, and from whom. If the summons came through your registered agent, the agent has already logged a date of delivery and forwarded the packet, usually the same business day. Under 8 Del. C. § 132, a Delaware registered agent must accept service of process on behalf of the entity and forward it; the statute is the reason registered agents exist and the reason you pay one even in years when nothing happens. Confirm the agent's forwarding date against your own receipt date; if they drift more than a day or two, you have a forwarding problem that will become an evidentiary problem later.

Then preserve. Any email, contract, chat log, invoice, or spreadsheet that touches the subject matter of the complaint is now on a litigation hold. Do not delete, do not "clean up," do not let the auto-retention policy run its usual course. This is the point where many small companies create the second lawsuit: the spoliation motion inside the first one.

Do not call the plaintiff. Do not call the plaintiff's lawyer to explain. Do not send a letter threatening a counterclaim. Anything you say or write becomes a party admission under Federal Rule of Evidence 801(d)(2), and plaintiffs' counsel will thank you for it at summary judgment. The only acceptable outbound communication in the first seventy-two hours is to your own lawyer and your insurance carrier.

Call the carrier early. A commercial general liability policy, a directors-and-officers policy, or an errors-and-omissions policy may cover both defense costs and indemnity, and nearly all of them require prompt written notice as a condition of coverage. Late notice is the single most common reason legitimate claims go uncovered.

Day three to day seven: retain counsel, scope the case

For anything above small-claims jurisdiction, which in most states caps out between $5,000 and $25,000, retain counsel. The temptation to self-represent is strongest among founders who have handled their own contracts and feel they know the facts better than any lawyer will. This is usually correct and almost always irrelevant; civil procedure is a separate craft, and a pro se answer that waives an affirmative defense is more expensive than counsel would have been.

The right lawyer for the first week is not necessarily the right lawyer for trial. A commercial-litigation generalist can read the complaint, flag the jurisdictional issues, calendar the deadlines, and decide whether a specialist (IP, employment, securities) needs to take over before the answer is due. If you have a transactional lawyer you trust, call that person first; they will refer out to litigation counsel they know.

While counsel is coming up to speed, pull the complaint apart into three lists. First: what is factually wrong and provably so. Second: what is factually right but legally insufficient, meaning the plaintiff could prove every allegation and still not have a claim. Third: what is factually right and legally plausible, which is where the real defense work happens. The second list is the seed of a Rule 12(b)(6) motion.

Day seven to day fourteen: answer, move, or remove

By the end of the second week, you and counsel decide among three postures, which are not mutually exclusive.

An answer responds to each numbered allegation with admit, deny, or deny knowledge, and lists affirmative defenses. It is the default move when the complaint survives a threshold legal challenge, or when you want the case to proceed on the merits because the merits are yours.

A Rule 12(b)(6) motion to dismiss argues that even taking every allegation as true, the complaint fails to state a claim on which relief can be granted. The pleading standard comes from Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal, a complaint must plead facts that make the claim plausible on its face, not merely conceivable. The court strips out legal conclusions and threadbare recitals, then asks whether the remaining factual allegations, assumed true, raise a plausible inference of liability. Many boilerplate complaints do not survive a well-argued 12(b)(6), and the motion has the useful side effect of forcing the plaintiff to show their theory early.

Removal to federal court is the third option when the case qualifies. Under 28 U.S.C. § 1441, a defendant may remove a state-court action to the federal district court for the district where the state action is pending if the federal court would have had original jurisdiction, which means diversity of citizenship under 28 U.S.C. § 1332 (complete diversity, amount in controversy above $75,000) or a federal question under 28 U.S.C. § 1331. The mechanics live in 28 U.S.C. § 1446: file a notice of removal in the federal court within thirty days after receipt of the summons and complaint, attach the state-court papers, and serve written notice on all parties plus a copy filed with the state-court clerk. The state court loses jurisdiction the moment the notice is filed, subject to a plaintiff's motion to remand under § 1447(c). If removal is on your list, it has to be done inside that thirty-day window and before you file a responsive pleading that waives it.

In rarer cases the right move is a motion to compel arbitration, a motion to quash for insufficient service, or a motion to transfer venue. Each has its own clock. None of them let you skip the deadline to respond to the complaint, so counsel will usually file a short answer preserving defenses in parallel with any threshold motion, or stipulate with the plaintiff to extend the answer date while the motion pends.

What the registered agent is actually for

The registered agent's job is narrow and load-bearing. Under 8 Del. C. § 132 and the analogous statutes in every other state, the agent maintains a physical in-state address, accepts service of process during business hours, and forwards it to the entity. That is the whole statutory duty in most states, though commercial providers layer on compliance reminders, annual-report calendaring, and a web portal for retrieving delivered documents.

If the agent fails to forward promptly, you may learn about a lawsuit only when a default judgment lands. Default judgments are sometimes vacated under Federal Rule of Civil Procedure 60(b) or the state equivalent, but the standard is not generous and the cost of the motion often exceeds what a working agent would have cost for a decade. If your registered agent is unresponsive, if forwarded mail arrives days late, or if your compliance portal is broken, change agents. The filing fee to change agents is modest in every state, and the change is effective upon filing.

Do not use your own home address as the registered-agent address for an operating company of any size. Service of process is a public act, and you do not want a process server interrupting dinner to hand a stack of papers to your partner. A commercial agent exists for this reason.

Things people do that make everything worse

Three patterns recur in the bad outcomes.

The first is ignoring the envelope. Certified mail unopened is still served under most state rules when it was delivered to the address on file, and a default judgment entered against an ignoring defendant can be enforced like any other judgment, which means garnished wages, frozen bank accounts, and liens on property. The fantasy that not opening the envelope buys time is the most expensive fantasy in civil procedure.

The second is calling the plaintiff directly to "work it out." Informal calls produce admissions, waived defenses, and the kind of recorded voicemails that show up as exhibits. If there is a settlement conversation to be had, counsel has it, on privileged channels, with a written term sheet at the end.

The third is the threatened counterclaim letter, sent by the defendant personally, usually in the first week, usually drafted at two in the morning. It signals emotional investment, commits to factual positions before counsel has had time to evaluate them, and sometimes supplies the plaintiff with the malice element of a tort claim they had not previously pleaded. If you have a counterclaim, it belongs in your answer, drafted by a lawyer.

The rule of thumb

Treat the receipt date as the one number that matters, hand the packet to a lawyer inside three business days, and say nothing to the other side until counsel says you may.

Sources

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