You have some people you need to sue. They hurt you, and they all need to be served so you can get compensated for your injuries, adjudicate your case, and get on with life. Like everything else in the legal world, there is a process for this, and the process varies by jurisdiction. Still, there are some tried and true basics that every jurisdiction recognizes. As a plaintiff, you must follow all the rules for service of process in your jurisdiction.
But what happens when you have a defendant who is difficult to find?
About Service of Process
For our purposes, service of process is the means by which the aggrieved party in a lawsuit puts the other party on notice that they’re being sued. In general civil court, service of process is achieved with the delivery of a summons and complaint to the defendant. One of the easiest routes to dismissal of a case is improper service of summons. This can happen if a plaintiff does not pay close enough attention to details. If your jurisdiction requires that the summons and complaint be hand-delivered and the plaintiff does not do this, that’s grounds for dismissal. So, it’s important that you closely adhere to the rules for your court and jurisdiction.
Use a “Paper Trail” to Hunt Down the Defendant
As part of the hunt for an elusive defendant, there must be a paper trail or electronic recording of the process. In other words, there must be proof, proof, and more proof that the process server or whoever “served” the defendant did it correctly. Or, there must be a record showing that the defendant could’t be directly served. Without a record of what was served on whom, when, and how, service of the summons and complaint may not stand up in court.
Serving an Elusive Company
Companies are easy to find. Right? Not always, but they tend to be easier to find than individuals. Every corporation or LLC is required to have a registered agent in each state where they do business. The registered agent must receive service of summons for the company.
- In the state where the company does business, go to the secretary of state’s website and conduct a business search for the company. If the company is registered, the listing should come up with the name of the registered agent.
- Be sure you have the correct company. Many companies have similar names. For instance, there are over 200 companies in California that start with the name “Apple”.
- Look for clues that the company is or is not the one you seek. If you were hurt in 2016 and the company you’re looking at went defunct in 2011, chances are it’s the wrong company.
- If the company cannot be found, the name may have been changed or misspelled, the company may be registered in another state, or it may be doing business under another name.
- Try name variations. Be vigilant.
- When in doubt, send a letter to the listed registered agent. A registered agent will tell you whether or not they’re the agent(s) for the company you want to sue.
- Keep searching until you find the right agent. The company does exist. In some instances, county records might be useful.
- You might have to search in multiple states before you find the right company.
- Keep a paper trail of what you did to find the company.
- Once you find the company, serve the registered agent.
- If for some reason you cannot find and/or serve the agent, serve the secretary of state. Each state has a process for doing this. Adhere to the process.
Serving an Elusive Individual
When a defendant doesn’t want to be found, the plaintiff must start a paper trail to assure a court that he or she made honest efforts to find and serve him anyway. That’s called due diligence. Otherwise, the case can be dismissed for improper service of summons. When you’ve tried to serve someone at an old address, and they can’t be found there’s much you can do. The more you do to track down your defendant the better. In fact, most jurisdictions will give you side eye if you don’t try most of the suggestions under due diligence below.
This list is numbered but there is no particular order. Do what is most appropriate for your circumstance.
- Send an inquiry to the United States Post Office to get current or relocation information about a defendant. To do this, complete an .rtf form, provide case details, and prove you’re a party.
- If the lawsuit is about an auto accident, request driver information from the department of motor vehicles. Begin with the state where the accident took place, but don’t overlook other states if necessary. Again, you must provide case details and prove you’re a party to a lawsuit with the defendant.
- Like the post office, other government and professional agencies might provide addresses for you. This includes the armed forces and the department of corrections.
- You might find the defendant through his last known employer. In some cases, you might even be able to serve him through his place of employment.
- Find names and addresses of relatives, and inquire as to defendant’s last known address.
- Identify addresses connected to land line phones in the defendant’s last known locations.
- Use Internet White pages or other site that helps find people. Like most everything else listed above, there is a fee. However, the cost is minimal, and the information is pretty accurate.
Service by Publication
Okay, you’ve looked for the defendant through the department of motor vehicles, post office, and employer. You’ve tried to have him served at the address listed in the White pages, post office, and department of motor vehicles. He appears to be avoiding service. Now it’s time to consider service by publication, notifying the defendant of the lawsuit by announcing it in an approved newspaper.
To support your move for service by publication, your paper trail must be so long and deep that the judge will be convinced that you did the best you could to find the defendant. Your paper trail should show letters you wrote, receipts you kept, forms you completed, results of each search, the amount you paid, and so on.
An affidavit where you swear before a notary that you conducted a diligent search may also be required. Even if it’s not, swear out an affidavit anyway. It adds credibility.
So, what happens when you have a defendant who is difficult to find? You go through a process to hunt him down. That process is longer when the defendant is elusive, but if you do it right, you get a defendant who must answer or you get a default judgment. Either way works for you.