The court discusses service of process in the context of the internet.
Plaintiff sued because of some allegedly defamatory posts by Defendant on Defendant’s web site. When his process server failed to make service he moved for alternative service by mail. The trial court denied the motion, spotting the fact that the process server — despite a return that seemed to show a lot of effort — hadn’t really tried very hard. Plaintiff made one more desultory try then served by publication and took default judgment. He knew defendant’s email address and phone number and knew she was active on social media. And he had been in internet contact with her before the suit. But he didn’t try to notify her in any of those ways nor ask to serve electronically.
Defendant moved to set aside the judgment. After an evidentiary hearing the trial court granted the motion, finding that Defendant was not evading service and that service attempts were insufficient. Defendant appealed.
The Court of Appeals affirms. Plaintiff argued that the court should review de novo, presumably to avoid the lower court’s findings. The court points out that it reviews Rule 60 motions for abuse of discretion and clearly-erroneous findings.
The rule on service by publication (4.1(l)) requires that the plaintiff be unable to find the address after diligent effort or that the defendant is evading service, and also that service by publication is “the best means practicable in the circumstances for providing the person with notice.” (Some of us remember when our rules were written in English rather than in semi-grammatical jargon.) For some reason the trial court made a finding on only one of those things — that Defendant wasn’t evading. But there were only three possible addresses, the process server admitted that she thought one of them was the right address, and Plaintiff had the means of contacting Defendant to confirm it but didn’t. “A reasonably diligent effort . . . would have included reaching out to [Plaintiff] via telephone, email, or even social media to verify her correct address.” You can find telephone cases that are years old but the email/social media aspects of this are somewhat novel.
The court uses them with the “best means practicable” requirement as well. It says that even if there had been diligent effort and/or evasion of service, “given our present society . . . modern methods of communication, especially email, were more likely to give . . . notice of a suit than publication.” (The telephone is an even better way but that’s not the point of the opinion.)
The court adds archly, in an unnecessary and ill-considered comment, that the newspaper used for publication was distributed in a rural area 70 miles from Defendant’s Scottsdale address. But what of the very next section of Rule 4.1(l), which specifically allows service “in a newspaper published in the county where the action is pending,” as it and its predecessors have for many years? Would using a “closer” paper have overcome the failure to make a phone call or send an email? Is “a newspaper published in the county” no longer good enough? If so, why does the rule still say that? If not, on what basis should defendent select a newspaper — by trying to read the plaintiff’s mind about which one (if any, nowadays) she’s most likely to read? (And if that’s the standard, why don’t we require publication to be done on the paper’s front page rather than rather than in parts that nobody reads anyway?) Granted, the Republic needs the income; but the niche papers that make a living printing legal notices will be sorely disappointed.
There’s not actually much new here except the reminder to pursue internet contacts. And the moral is the old one: you need to direct and assist your process servers actively, not just let them go through their comfortable motions. The dogged, clever, self-starting process servers you read stories about presumably exist but you will never find one.