Volcano
Enterprises, Inc. v. Rush, No. 1121185, provides a cautionary
tale about serving a defendant by publication.
Plaintiffs
sued an allegedly intoxicated driver for causing an accident and Volcano
Enterprises, a bar licensee, under the Dram Shop Act. Initially, the plaintiffs sought to serve
Volcano Enterprises’ designated registered agent for service by certified
mail. When the certified mail was
returned, the plaintiffs engaged a private process server. The server discovered that the agent’s listed
address had been destroyed by a tornado.
(Unfortunately, it turned out that the agent was still receiving mail at
that address; additionally, there was no indication that the process server
investigated where the agent was living.)
On three or four occasions, the process server went to the bar looking
for the agent/operator. (Unfortunately,
the Supreme Court found that the process server’s efforts were quite
minimal.)
The
trial court granted the plaintiffs’ request to serve Volcano Enterprises by
publication; the plaintiffs complied with the formalities of service by
publication. Volcano Enterprises filed
no answer. A trial resulted in the
entries of a $3.25 judgment against the driver, despite his defense, and a $37
million judgment against Volcano Enterprises.
Within 30 days of the entry of the judgment, Volcano Enterprises filed a
Rule 59(e) motion in which it contended that the judgment should be vacated
because it was not properly served with process. (Volcano Enterprises alternatively requested
a remittuter of the judgment.)
The
Supreme Court held that the plaintiffs failed to meet their burden of
demonstrating that Volcano Enterprises’ registered agent had avoided service, a
requirement for being permitted to serve by publication. The process server’s efforts were extremely
minimal and did not show that the agent was actively hiding or endeavoring to
avoid being served. The Supreme Court
discounted that there was some indication that Volcano Enterprises may have
received some of the pleadings filed prior to the trial.
The
lesson is clear that, before requesting to serve a defendant by publication, a
plaintiff must exhaust all reasonable attempts at perfecting “normal” service,
including searching for new addresses for the defendant, and must be able to
proffer sufficient evidence that the defendant is actively avoiding service, as
opposed to, just being difficult to track down.
