The Legal Requirements for Service
Generally, legal requirements for serving court papers mandate that a copy of the papers must be given directly to the individual being served. In many cases, this process is known as personal service. Depending on the case type, it’s often necessary to serve the person in a way that ensures they actually received the paperwork.
On a surface level, this concept is quite simple and easy to understand. However, in cases where you’re missing an address, it presents several challenges. One of the primary reasons why an address is required is the fact that, in many cases, the individual you’re attempting to reach may avoid you or the truth if they’re aware of the legal papers against them . This is one of the principal reasons you’re required to deliver the papers at a specific location.
As implied above, not knowing the address you need presents two significant problems. In the first, you’re unable to verify that the individual you’re trying to reach is actually aware of the existence of the court case against them. In the second, you cannot legally serve the papers if you don’t know the address for sure.
Thus, addressing the problem of not having the individual’s address becomes paramount.
How to Find a Recipient
If you have to serve court papers on someone but don’t have an address, don’t despair. There are several ways to locate someone without an address.
Social Media. It’s not just for fun; social media can also be a valuable tool for locating an individual. Many people post their employer’s name on their Facebook page. A search for their name – and perhaps the name of one or two of their friends – on LinkedIn can turn up their current or former employers, making it easier to serve them. You can also use social media to reach out directly on Facebook and (if it’s a personal page) Instagram, although you can’t be sure they’ll see your message in a timely fashion.
Private Investigator. The advantage of hiring a private investigator to locate an individual is that PIs have access to databases containing records not otherwise available. A PI can conduct a social media search, for example, using resources not open to the general public. PIs are also trained to find people.
Public Records Search. A public records search company can also locate the individual you’re looking for. For example, if you know where the person banked, you can provide the bank’s name and hope that the firm can look at the bank’s internal records to see where the person has been living. (Please note: it is sometimes illegal to do so, depending on state law. Be sure to check with the legal or paralegal staff of the court or with the firm’s ethics desk about the legality of the search.)
Other Methods for Alternative Service
As mentioned in the requirements section, Connecticut allows for service by a number of alternative methods if the address cannot be ascertained.
Service By Publication
One of the most common methods of alternative service used by lawyers is service by publication. In this method, the plaintiff files, along with a motion for alternative service, an affidavit of due diligence setting forth his or her attempts to locate the defendant. If the court is satisfied that the plaintiff has made due and reasonable efforts to serve the defendant, the court can order service by publication. In other words, the court will say: "I’m convinced that the defendant’s address cannot be found and therefore service is to be done by publication." In order to be effective, the notice must be published daily "three or more times in some newspaper published or having a circulation in the state." Conn. Gen. Stat. § 52-59b. The notice must include: You have to keep in mind that newspapers vary widely in circulation range. While the Hartford Courant may have the largest circulation in the state, it is not necessarily the newspaper with the statewide circulation. For example, The New Haven Register is a daily newspaper in Connecticut that reaches both the New Haven and Fairfield counties.
Service by email is a newer method of service approved by the Court. The email method is limited to corporations and partnerships. However, it can work for limited liability companies, since they are considered to share the same classification as a corporation. Also important to note is that corporations cannot use email service for counts of wrongful withholding for distribution of corporate assets. There are several other calls that are not permitted for email service under the rules. Connecticut law requires that the email address of the defendant must also be provided by the plaintiff as part of the required information for serving a foreign entity. The notice is sent to the email address by regular mail and certified mail.
How to File a Motion for an Order for Alternative Service
In general, if you are unable to locate a defendant, you need to file a motion with the court seeking permission to use an alternative method of service, along with a sworn affidavit detailing the steps you have taken to locate the defendant. The affidavit should include the name and address of the person to be served and the reason for the request for alternative service. If you are seeking permission to serve by publication, the motion must also set forth the names and addresses of the defendants who can be served, but for information and belief that the name or address is unknown; or, if this is not practicable, why this information cannot be provided.
Moreover, the motion must attach an affidavit properly requesting that alternative method of service be granted. The court will accept an affidavit of any person with knowledge of the facts in the motion and affidavit. The courts will consider a motion made by the party’s attorney, but they will generally place a heavier burden on the attorney’s affidavit. The affidavit can be made in or out of the presence of the court clerk, and thus can be made by telephone, email, or other electronic means. Only when the court is satisfied that service has been attempted with due diligence and there have been sufficient efforts made to find the defendant, then the court will grant alternative service. Importantly, if the request for service by publication has been requested, the court will require the language to be used for publication to be attached to the request.
The court will evaluate the efforts made to locate the defendant through the following factors: name and address of the defendant listed in the pleading; all aliases known to the plaintiff or served on the defendant; name of employer of the defendant, if known; name and place of school if the defendant is a minor; name of last known cohabitant of the defendant; telephone books, Internet, social media, and related services; credit reporting companies; automated databases, including drivers’ and marriage registries; and, court records revealing other lawsuits, foreclosures, worker’s compensation cases, social security, or various government benefits.
Once the alternative service is granted, it is typically done in two ways. The first is that notice is directed to be published in newspapers. The notice must be provided for four consecutive weeks in the same general public location. Importantly, the statute does not require that the notice be under oath. Secondly, the granting of alternative service is sometimes by mail to the defendant’s residence if it is known. In those cases, mail must be sent via certified registered return receipt requested , and it is important to keep the receipt to file with the court.
While the courts have discretion in how to permit alternative service and do so in special circumstances. Courts may authorize alternative service by electronic mail, text messages, and other electronic means. Below is a list of cases that have granted permission for alternative service methods:
B.Heimann, Inc. v. Hennessey, 5 So.3d 657 (Fla. 5th DCA 2009) In B.Heimann, the service was permitted by email, facsimile, cellphone text message and other means, as long as they could be confirmed. Specifically, the Court permitted a message on the defendant’s answering machine because it contained a prompt number. Moreover, it also permitted a message left on defendant’s cellphone mailbox to be considered good service.
Sullivan v. Memorial Healthcare Group, 80 So.3d 993 (Fla. 4th DCA 2012) In Sullivan, the Fourth District Court of Appeals upheld the use of electronic service via Facebook, and the process was deemed commercial. The defendant, in this case, had been convicted of DUI manslaughter. The defendant appealed his sentence and obtained a public defender who filed an Anders brief. In the meanwhile, however, a staff member of the Florida Supreme Court’s public defender office posted a message on the defendant’s Facebook page, which explained that the public defender was seeking to withdraw from the case. The message was signed "Linda" and provided a telephone number and email address for further contact.
Morris v. EG & G Technical Servs., Inc., 973 So.2d 1156 (Fla. 4th DCA 2008) In Morris, the Court specifically identified Facebook posting as an appropriate method of service. There, Mr. Morris, the plaintiff, notified the court that it was impossible to locate and serve the defendants, Robert and Doris Morris, also the plaintiff’s parents, concerning the termination of a special relationship. The trial court ordered the plaintiff to provide evidence of the defendants’ current addresses or to provide evidence of his diligence in searching for them. The plaintiff subsequently filed a motion asking to serve by publication, with the option of alternative methods if he was unable to ascertain the identities of the defendants. The trial court granted this order, and the plaintiff published notices in the Palm Beach Post.
In addition, the plaintiff also served a copy of the publication on at least three of the defendants’ neighbors, and one of their daughter, Christine, via certified mail and certified return receipt requested. The plaintiff even went so far as to post a notice on the defendant’s Facebook page. This was a court-approved posting that detailed the proceedings. Interestingly, the plaintiff attached the Facebook posting to the plaintiff’s motion for final summary judgment to foreclose the lien as well.
How to Serve Without the Address
When it comes to serving your court papers on a defendant who does not have an address, it is important to keep in mind a few basic tips in order to effectively serve them and to make sure that the service is valid. First, decide if mail service is appropriate in your case. For example, if someone has moved and you don’t know where they are you will want to do everything you can to effectuate service by mail. You will still be required to do some detective work to find the person’s last known address.
Second, use certified mail return receipt requested with a copy emailed to the person being served. Send the mail to your best guess of the proper address and mark it as follows: "Court Papers Enclosed" "Important Legal Document" "To Be Opened by Addressee Only".
Third, take a picture or scan the document before sending so when and if the Post Office returns the receipt you will have evidence of what was in the envelope and it can be used as evidence that the desired person received the packet. Do not use fed ex or other routes as these are not allowed under the law.
In addition, document clearly how this method was tried, what was sent, when, what was returned, what was not returned, etc. If nothing comes back you should increase your efforts of other methods of service.
Proper documentation is extremely important in the event that the defendant moves for a dismissal or refuses to cooperate or contests service. You could even hire a process server to ensure service is done.
Finally, check with the court if you have any doubts about how to proceed with service of process. Communication with the court is always the best way to get answers to questions.
Judicial Repercussions
For a plaintiff, the first obstacle to service of process where an address is unknown is the legal implications of not complying with the law. Statutes govern the manner of serving legal papers. With limited exceptions (e.g., personal delivery within 180-days, 503(e) for Divorce actions), compliance with these statutes is mandatory. A court may not exercise jurisdiction over a defendant where substantive statutory service requirements have not been satisfied. Consequently, a judgment entered against such a defendant will be voidable.
Defendants almost always raise improper service in their answers to a complaint. This is by design. Addressing this issue at the outset should be a priority for any defendant or attorney. The strict application of this rule protects the right to actual notice and the opportunity to defend oneself against a lawsuit. Every defendant has a constitutional right not to face a case unless there is a legally sufficient and valid basis for a court to exercise jurisdiction over him or her .
If a defendant raises improper service and prevails, there are two possible outcomes. First, dismissal without prejudice. This allows a plaintiff some breathing room to properly serve. Depending on the length of delay before the defendant raised the issue or any delays thereafter, a challenge based on improper service may trigger a statute of limitations problem for a plaintiff, rendering him or her unable to bring a new action. This is especially true with statutes of repose. Ideally, a plaintiff will address service as soon as possible and comply with the statutory minimum requirements.
The second outcome is that a plaintiff may lose a motion for judgment of default and have a default judgment overturned. In Ferreira v. Rancocas Orthopedic Ass’n., 178 N.J. 144 (2003), the Court determined that the court’s failure to comply with N.J.S.A. 4:4-5(a)(2) "invalidates any judgment that flows from such a judgment by default." Ferreira, 178 N.J. at 162. It is unsurprising then that default judgments entered improperly may be vulnerable to attack even many years later.