PUBLISH RIGHT OR PERISH

November 9, 2010 § 4 Comments

We’ve talked before about what you need to do when publishing process for a defendant whose post office address is known.  You can read that post here.

When you have no information about the defendant’s whereabouts, there are a couple of things you have to do before you can publish.

MRCP 4(c)(4)(A) states in part:

… if it be stated in … sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk … shall promptly prepare and publish a summons to the defendant to appear and defend the suit. 

Your first step is to send your client out into the world to make an effort to find the defendant.  Have her call his relatives and ask about where he is.  If they say the last they heard he was in Milwaukee, have your client call information in Milwaukee or look him up on the internet.  If he remarried, try to contact his later spouse or children.  Suggest she call his former employers or co-workers.  Most of these efforts will be futile, but the efforts themselves, not the success, constitute the “diligent” part of “diligent search.” 

After your client has diligently, but unsuccessfully, tried to find the defendant, prepare your pleadings including a sworn allegation in your pleading or an affidavit that the defendant’s address is unknown to your client “after diligent inquiry.”   You must include that language, or your publication will  be a nullity.

The rule says that the “clerk shall promptly prepare and publish a summons,” but it is the universal practice that the lawyer prepares the summons and gives it to the clerk to issue, and the lawyer carries it to the paper for publication.  The publication must be substantially in the form of MRCP Form 1-C.

Publication is once a week for three successive weeks in a newspaper published in the county.  The publication notice certified by the newspaper is filed in the court file by the lawyer.

The defendant has thirty days from the date of first publication within which to file a responsive pleading.

Once you get before the court, your client or the affiant will have to testify to the efforts they made to locate the defendant.  There is no case law defining the proof necessary to satisfy the diligent inquiry requirement.  In Page v. Crawford, 883 So.2d 609, 611-12 (Miss. App. 2004), the court said this:

There is no bright line rule as to how many efforts must be made by a plaintiff to locate a named defendant to satisfy the requirement of diligent inquiry.  There is also the question of balancing the quality of those inquiries with their quantity. Standing on a street corner and asking passersby if they know the defendant’s location would clearly not constitute diligence, no matter how many persons were asked in that manner. Beyond that, it becomes a matter of balancing quantity, quality and the interests of the parties.

In this case, Page did make several attempts to locate and serve Crawford within the 120-day period, searching through both telephone and utility directories and repeatedly engaging process servers. When Page finally found Crawford’s husband, he refused to accept certified letters regarding the matter. Although land records do seem like an obvious place to conduct an inquiry, Page was looking under a former name that was given at the time of the accident.

In Caldwell v. Caldwell, 533 So.2d 413 (Miss. 1988), the Mississippi Supreme Court found Mr. Caldwell’s half-hearted efforts to discover his wife’s post office address in Alaska to be insufficient, especially in view of the fact that she had family he could have contacted, but did not, to further his search.

I have refused to allow parties to go forward where it was obvious that more could have been done to locate the defendant.  In one case, the plaintiff testified that the last she heard her husband was in prison in Texas.  I pointed out to the attorney that prisoners, of all people, should be among the easiest to locate.  Sure enough, they went back to the drawing board and found him on an internet prisoner locator site.  They then got personal process on him and were able to proceed with an uncontested divorce.    

The purpose of MRCP 4 is to ensure that a defendant receives notice of legal proceedings against him, if at all possible, so that he has the opportunity to defend.  If the court finds that your client’s efforts fulfill that purpose, your publication process will be adequate.  Don’t take your client’s word for it that she has tried to find him and failed.  Make her go through the process of trying.

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