Evasion of Service
What happens if someone is evading service of process or a person’s whereabouts are unknown? A person may incorrectly assume that the lawsuit can’t move forward if service can’t be completed. That couldn’t be further from the truth. If a person is evading, they may successfully delay the process slightly, but odds are they won’t prevent eventual service and won’t stop the case from proceeding. It will be necessary to utilize a competent private process server, which is someone who is generally a licensed private investigator as well, so that every effort is made to complete the service correctly. Then if service still could not be completed, the process server will need to demonstrate their due diligence by documenting each attempt and any other investigative efforts in an affidavit. Sufficient due diligence in service efforts is important, and what those efforts entail is going to vary based on the situation.
The following is just one example of proper due diligence:
Let’s assume Mr. Broke has been sued by a business owner named Ms. Independent for not paying his $4,000 invoice for her fantastic services rendered. Mr. Broke anticipates he will be served court papers soon, considering he has ignored all Ms. Independent’s requests for payment. However, Mr. Broke moved to a new home recently, and figures a server won’t find him. The server, Ms. Bosslady, doesn’t know this and goes to Mr. Broke’s last known address where she speaks to the current resident, Ms. Maga, who explains she just moved in 2 weeks earlier and doesn’t know anyone named Mr. Broke. She is a renter and was willing to provide Ms. Bosslady with the landlord’s contact information. Ms. Bosslady makes contact with the landlord, who tells Ms. Bosslady that Mr. Broke moved out 2 months earlier and mentions that Mr. Broke is a newlywed and ended his lease early to move in his wife’s home. Ms. Bosslady then finds Mr. Broke’s Facebook profile and sees the profile picture is Mr. Broke with his lovely bride, Mrs. Jane Doe, whose name is tagged in the picture. Ms. Bosslady notices that 3 months earlier, Mr. Broke posted a picture standing in front of his Jeep Wrangler, with the vehicle tag number visible. Ms. Bosslady now utilizes a professional database to verify Mr. Broke is the registered owner of the vehicle in the picture and also determined Mrs. Jane Doe’s current address. Ms. Bosslady also verifies through public records that Mrs. Jane Doe is the current home owner of that address. When Ms. Bosslady goes to Mrs. Jane Doe’s address, she notices a Ring doorbell camera and after pressing the doorbell, a woman speaks through the doorbell speaker and says no one named Mr. Broke lives there. Ms. Bosslady goes back to the residence 3 more times over the following week and guess what is in the driveway each time……..Mr. Broke’s Jeep Wrangler; however, no one answers the door or responds through the Ring doorbell speaker. Eventually, Ms. Bosslady goes next door and speaks with the neighbor, who is 70ish year old, Ms. Mabel. Ms. Mabel tells Ms. Bosslady that Mrs. Jane Doe has lived there for about 5 years and her new husband just moved in recently. At this point it appears obvious that Mr. Broke lives at this address and is evading service, so Ms. Bosslady outlines all of the details of these efforts in the affidavit, which is filed with the court.
Once sufficient due diligence has been conducted, a motion can be filed with the court requesting alternative service. The judge then reviews the service efforts thus far and will either approve alternative service or the judge may feel the service efforts were not sufficient and deny the motion. If the motion is approved, the judge will establish the method in which that alternative service can be completed, i.e. posting the documents at the residence or mailing a copy of the documents to the last known residence and the believed current address. If the motion is denied, then additional efforts will need to take place to satisfy the judge and eventually get the person served or the motion approved.
The bottom line………with a competent process server/investigator handling a difficult service, the case will move forward. Evasion tactics generally delay the process and increase the service fees, but the last laugh will be on the person evading. A person evading service or who chooses not to show up for court after alternative service, risks having a judgement placed against them or depending on the type of documents being served, they could be risking a body attachment.