PUBLICATION PITFALL

June 17, 2010 § 7 Comments

So you dug and dug until by the hardest you found the defendant’s mailing address in Moosebreath, Idaho.  Good for you.  Pleadings all prepped and filed.  Publication 3 consecutive weeks in the MERIDIAN STAR for that anticipated and fateful day.  Notify client to be there.  No answer filed.  Case called in open court.  Defendant called 3 times.  Present judgment …

Judge shakes his head and says, “Sorry, no jurisdiction.”

What happened?  How do you explain this to your client?

The answer is in Rule 4 (c) (4) (C), MRCP.  That rule states:  “Where the post office address of the absent defendant is stated, it shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket, and this shall be evidence of the summons having been mailed to the defendant”  [Emhasis added].

Prectice tip:  At the same time that you file your pleading, provide the clerk with an extra copy of the pleading and the summons and specifically request that it be mailed as set out in the rule, and that the facts of issuance of process and mailing be noted on the docket.  Some lawyers, to add a measure of assurance, pay the postage for the clerk to mail it certified mail, return receipt requested, although that should not be strictly necessary if the facts of issuance and mailing are properly noted on the general docket. 

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