Publication Process When the P.O. Address of the Defendant is Stated

August 4, 2014 § 3 Comments

It can’t be overstated that the process requirements of MRCP 4 must be satisfied in every particular in order for the court to have personal jurisdiction over a defendant. There is no such thing as “close is good enough.” There are plenty of cases that hold that even if you can prove that the absent party knew of the proceedings, unless that party was properly served with process, the court has no jurisdiction.

MRCP 4(4)(A) allows you to obtain process by publication if you allege by sworn complaint or petition, or by affidavit, that the defendant is a non-resident, or is not to be found in this state, after diligent inquiry.

If the party’s post office address is unknown, you can proceed from there.

But, if you have a last-known address, there are some technical requirements that trip up many lawyers.

R4(4)(C) says expressly: ” … 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 the evidence of the summons having been mailed to the defendant.”

The rule puts the duty on the clerk, but let’s think about that a minute. What is the penalty if the clerk fails to mail or note on the docket? The penalty is that you have to do it over … and over again … until it’s done right. So, what do you do?

I think you have a choice between two ways to go …

  1. You bring your own extra copy or copies, as many as necessary, along with postage, and help the clerk get those copies into the envelopes and ready to mail, first class, postage prepaid, and then you ask the clerk — politely — to note the fact on the record. The principle being that if you want something done right, you should … well, you know the rest.
  2. You can whine and complain about how unjust and unfair this is. In the meantime, your client is stuck on the starting line, waiting for you to effect process.

I’ve posted about this before here, here, here, and here.

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§ 3 Responses to Publication Process When the P.O. Address of the Defendant is Stated

  • Steve Williams says:

    If you know a non-resident defendant’s address, why not use certified mail service under R4(c)(5)?

    • Larry says:

      It’s your choice to make, but I never had much luck with certified mail. You need either the signature of the person to be served on the card, or the letter returned marked “Refused.” Often, the card came back with no signature or someone else’s signature, and the letter came back “Unclaimed,” which is not the same thing as refused. Pick your poison, as they say.

      • Bob Wolford says:

        If I’m not mistaken, certified mail service is primarily for out of state defendants, and then you have to follow that up with regular U.S. mail service. If I understand the rule here, process by publication is proper when you simply cannot locate the defendant, whereas certified mail service is for defendants who are outside the jurisdiction and personal service would be burdensome and all that. There’s also that bit about the long-arm statute, etc., etc.

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