“But Ken, Following The Rules Won’t Make for Good Television!”: How The Poor “Process Server” on The Television Series All Worked Up Needlessly Makes Life Too Hard on Himself
By Ken K. Gourdin
All Worked Up apparently is one of those shows which blurs the line between drama and reality. (I know what you’re thinking: “Ken, don’t all television shows do that?”) Touché! What I mean is, it’s a “reality” show, which means you don’t know what you’re getting in terms of whether these are real, unscripted events which are simply being filmed as they happen, or whether they are later reenactments that are based on real events, and so on.
One of the—What’s the right word? Characters? Actors? Participants?—bills himself as a process server named Byron McElderry “in the city of Noo Yawk.” (If someone decides to sue you, or if other legal process [such as an eviction] is initiated against you, you usually find out from a process server, who must serve the paper upon you to notify you that some sort of legal action is being taken against you.) [Update: 23 February 2013 — I found at least part of the problem: Byran spells his name with an “a” rather than with an “o.”] The phrase “serve the paper upon you,” however, while it sounds all high falutin’ and legal and stuff, is much simpler than it sounds, and it’s probably a lot simpler than poor Byran McElderry makes it for himself—either that, or New York has some very strange legal rules, as I discuss below.
I’m not exactly sure, notwithstanding how he bills himself, who Byran McElderry is. Usually, if a real person appears as himself or herself on television or in the movies, he or she receives billing in the credits by listing a real name, followed by the phrase, “as himself.” If the credits intend to indicate that the person is playing a role which is different than what he does in real life, usually he is billed as, “Byran McElderry . . . process server.” That is to say, the actor Byran McElderry played the role of a process server in the production. The entry for the television series All Worked Up at the Internet Movie Database, however, does not list Mr. McElderry in either manner. In fact, it doesn’t list him at all that I can see. [It lists him neither as “Byron” nor as “Byran.”]) Which is not to say, however, that if Mr. McElderry’s service of process is intended to be genuine rather than merely for show, it is not legally effective: if the New York rules governing who may serve process are the same as the federal rules (a big if!) then anyone over age eighteen who is not involved in the action may serve process: that person doesn’t have to be a “professional” process server.
At the outset, I will admit (although I do have a law degree, even though I have never been licensed to practice law anywhere) that I know absolutely nothing about the “Noo Yawk” Rules of Civil Procedure. And “Noo Yawk” is one of those jurisdictions that simply has to do things differently. California is one: California has about a million more laws than any other jurisdiction in the country, because a majority of the members of the California State Assembly are (and always have been) thoroughly convinced that if there’s a problem (or even if there’s the faintest hint of a whisp of a problem), there ought to be a law to fix it. “Noo Yawk” isn’t far behind.
There are other jurisdictions, too, where things are done differently, largely simply for the sake of doing things differently. Illinois is another. Louisiana is another, although the reason things are done differently in Louisiana is because the French started doing things differently long before the United States even became a country. And the French didn’t think there was a good reason to change even after they sold what is now Louisiana and the surrounding area to Thomas Jefferson for 99 cents.
For all I know, in order for service of process to be valid in New York, a process server may have to stand on his head and simultaneously rub his tummy counterclockwise while clucking like a chicken for at least 30 seconds in the defendant’s presence. (Like I said, complication merely for the sake of being complicated!) However, the Federal Rules of Civil Procedure, while they govern only service of process for actions which take place in federal courts, also served as sort of a template for that vast portion of the country, which—unlike California, New York, Louisiana, et cetera—sees no need for excessive complication. Thus, most state rules of civil procedure, while they might differ somewhat from the Federal Rules, largely resemble them.
And the Federal Rules of Civil Procedure which govern service of process (unlike, apparently, their New York counterparts) largely are relatively straightforward. In order to serve someone with process, a server may, for example, leave the document to be served in a conspicuous place on the premises of the person being served, or leave it with a person in authority or with a responsible person on those premises. From watching Mr. McElderry, however, I get the idea that serving process in New York is much more complicated.
Apparently, for service of process to be effective in New York, a process server such as Mr. McElderry must leave the document to be served in the very hand of the person to be served—no ands, ifs, or buts about it. Mr. McElderry must leave it in the very hand of that person, period. And if that person becomes upset and throws the document at Mr. McElderry (as often happens), Mr. McElderry must go back, pick it up, and make further attempts to deposit it directly into the person’s hand. (Perhaps he should put an adhesive substance, such as glue or honey, on the paper before serving it to ensure that it will stay in—or at least on—the person’s hand after it is served.)
And which is more, not only must it remain in the hand of the person who has been served until Mr. McElderry has vacated the premises, in New York, apparently, Mr. McElderry must ensure that the person upon whom he has served process is happy about it before he leaves: the requirement of ensuring happiness in the defendant following service of process, alas, is an extremely tall order! Most people upon whom process is served are being sued, or evicted, or are having other adverse legal action taken against them. Apparently, however, the New York rules governing service of process require that defendants crack toothful, sunny smiles; trade jokes with Mr. McElderry; or otherwise manifest to him that, notwithstanding the sudden appearance of dark, foreboding legal storm clouds on the horizon, the sunny disposition for which New Yorkers are famous throughout the universe is unchanged!
Either New York has even stranger rules of civil procedure than I had imagined, or actually following the rules wouldn’t make for “Must-See TV.” Either way, I wish Mr. McElderry the best of luck!
Update: 23 February 2013 — As evidence that great minds think alike, see the New York Process Server Forum at http://www.newyorkprocessserver.org/blog/tag/byran-mcelderry/, last accessed today. The post makes the same points that I do, above. Here’s an excerpt:
Indeed, here’s a hint about how ignorant the producers are, in their own words, at truetv.com, where they claim that: “His (McElderry’s) job is doubly hard due to the fact that McElderry has to issue papers face-to-face. Without physically putting the papers into a defendant’s hands the documents don’t count as served[.]” Nothing is further from the truth. Haven’t they heard about substituted service, service by mail or service of process by nail and mail[?] For instance, in the case of the tenants against the landlord, substituted service would suffice.
In reality (People from TruTV, listen up!), process servers must avoid confrontation or getting “physical” with evasive defendants. Most court papers can be served without chasing the defendant or forcing him to take papers in hand. In fact in New York (where McElderry, the process-server-turned-actor comes from), divorce papers and child support petitions must be served in person but there is no need to chase defendants around. It’s enough to personally confirm the identity of the defendant and to place the papers within Defendant’s reach where Defendant is physically present. Using tricks, deception, threats, harassment and stalking is totally unacceptable under New York laws and it can lead to sanctions against the litigant who hired the process server in New York City. So no smart process server in New York City will behave like McElderry does. Indeed under rules established by New York City laws, McElderry actions constitute harassment. The litigants whom he is allegedly serving, if it was true TV, can easily file charges against him and complaints for his antics and unprofessional conduct. But then again, let’s not forget:it is just a show. Probably even the alleged recipients of process are also paid actors too.
Update: 25 February 2013 — Here’s the note I left for the administrator of the site I link to above:
I hope you’ll conclude, based on my blog post on the same subject (see link below) that “Great minds think alike.” If not, I hope you’ll at least conclude that “imitation is the sincerest form of flattery” (although I found your blog after writing my blog post when looking for more information on the “Noo Yawk” Rules of Civil Procedure, and specifically the state’s rules governing service of process). (For the record, the only accent at which I’m intending to poke fun is Mr. McElderry’s: as far as I’m concerned, his behavior has given anyone who is so inclined the right to poke fun at him as much s/he wants.)
I hope you don’t mind that, since I found it so helpful, I included an excerpt from your blog post in an update after finding your site. Thanks for providing me with the correct spelling of Mr. McElderry’s first name (Heh!) and for confirming my suspicions that the rules governing service in your fair jurisdiction are not nearly as complicated as Mr. McElderry tries to make his viewers think they are!
My post regarding Mr. McElderry and service of process may be found at the following address:
-Ken K. Gourdin