SERVICE BY PUBLICATION. DO IT RIGHT.
If you never received any court papers and your co-residents never received any court papers addressed to you then how can a lawsuit have proceeded to judgment against you? This is possible because you were likely served by publication. However, was this still good service? I worked as a paralegal for over 10 years for civil defense attorneys and I have been a process server and investigator for over 20 years and it has been my experience that when a civil defense attorney accepts a case post judgment, the very first thing they do is look at what the process server did. They will not even consider the merits of the case unless they can get past the process server. I have seen them accept or reject a case solely on how good the process server did their job.
Hire a good Process Server.
Being served by publication is usually the last resort for serving an individual when there is no known address for service of process. A good process server is crucial because they need to demonstrate with their return of service(s) that they have made solid and ear
nest attempts to serve the defendant at all known addresses and that those addresses were reasonably eliminated as valid addresses for service of process. Their Returns of Service should show how they eliminated the address and that there is no other conclusion other than the defendant was not residing at the given address when the attempts were made.
Your Return of Service and Affidavit of Due Diligence should be able to stand the test of time.
Now that you have your non-served Return of Service(s), you can move on to the next step. Before publishing the lawsuit, the plaintiff must first provide the court with an Affidavit of Due Diligence listing everything they have done to locate the defendant to serve them with the lawsuit. Courts sometimes have different searches that must have been done to satisfy their requirements of an Affidavit of Due Diligence, so it is important that you research what your jurisdiction requires. Hiring an attorney for this is always best but it can be expensive so if you are on your own, make sure you research this well.
After publishing and moving to judgment, you are still not out of the woods. Service can be challenged at any time after the judgment has been entered so the Return of Service must be able to stand the test of time and it must be able to stand alone. If a long time has passed, the process server may not be around or if they are around they may not remember the case when the service is challenged. If the Return of Service is vague as to the attempts and if it does not contain any notes indicating how the address was eliminated, it could cause problems down the road. If the defendant moves the court to set aside the judgment because they produce some flimsy evidence that they were living at an address that was eliminated by the server, then the court could possibly set aside the judgment if the Return of Service is vague and lacking notes detailing how the address was eliminated. Admittedly, it is an uphill battle for the Defendant to prove their case, but you never know how a court will rule and if an address was reasonably eliminated, why not list in the Return of Service how it was eliminated to shore up any possibility of having the service quashed in the future?
If a defendant’s location is known but a process server simply cannot catch them to serve them then this is not a good enough reason to consider service by publication and the court will likely not accept service by publication anyway. If you manage to get a weak Return of Service past the court, remember that the defendant can always challenge service so if your due diligence is weak, then you run the risk of having your judgment set aside even years later and you are back at square one and hopefully you won’t have a statute of limitation issues to deal with.
Remember to hire a good process server and investigator. If you need good service that will stand the test of time, call Miami PSPI and we will deliver.
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