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Sometimes a prospective defendant cannot be served because s/he is out of the country, or just plain is in hiding. In that case, a judge will sometimes allow service by publication. That is, after publication of the charges, the defendant will have been deemed to have been served. Under what specific circumstances is this allowed?

If the defendant is represented by a lawyer who has answered for the defendant in other aspects of the case, can service be effected just by notifying the lawyer? After all, the defendant engaged the lawyer who (presumably) knows how to reach him or her. Or is this covered by attorney client privilege?

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Preface: Why Is Service Necessary?

A court order is not binding with respect to a person unless the court in question had jurisdiction over that person, or their predecessor-in-interest (or sometimes someone with a relationship with that person known as "privity").

To obtain jurisdiction over a person, the court must be a forum that is capable of exerting jurisdiction over that person with respect to this particular case, and there must have been service of process upon that person by an acceptable means.

In order to obtain a valid court order against a person that makes that person personally responsible for money judgment, or orders them to do something or to refrain from doing something that is not simply with respect to a particular piece of property (i.e. in an in personam action), there must be either personal service (i.e. hand delivery of legal papers to the person), or substituted service (e.g. hand delivery to an adult family member in the same household, hand delivery to an employer, service by mail or email or text message when authorized by a court, etc.).

Substituted service is generally not valid for service of a subpoena, only personal service will do in that case.

A person can waive service of process by delivering a signed waiver to the person seeking process, or by filing certain kinds of documents with the court in which the lawsuit is pending.

Service by publication is only allowed in actions that are in rem or quasi-in-rem, as opposed to in personam.

  1. Only Actions In Rem or Quasi-In-Rem

Service by publication is only effective with respect to actions in rem, which is to say regarding rights with respect identified property and the relief granted with respect to that defendant is limited to relief in rem, i.e. with regard to rights in that property, or quasi-in-rem (as explained below).

For example, no money judgment against the defendant can be entered on the basis of service by publication alone, although service by publication can bar a claim for money damages by the defendant to be satisfied out of the property at issue in the action, such as the assets of a probate or bankruptcy estate.

Common in rem actions including evictions (limited to termination of right to possession and not a money judgment for rent owed), replevin (a suit to regain physical possession of tangible personal property), quiet title, foreclosure, civil forfeiture, probate proceedings, bankruptcy cases, and claims processes for failed banking institutions or corporations outside the bankruptcy process (e.g. FDIC resolutions of claims of failed banks).

For this purpose, a suit regarding the the existence of or termination of a marriage or family relationship is in rem, although no in personam obligations or liabilities such as a child support judgment or a protection order can be imposed in such an action.

For example, this is done in adoption proceedings, in certain guardianship and conservatorship proceedings, in divorces where the other spouse cannot be found, and in determinations of death due to prolonged absence or other circumstances where the death cannot be confirmed.

A lawsuit supported by "quasi-in-rem" jurisdiction, a lawsuit one that would normally require personal service of process or substitute service of process for the court to obtain jurisdiction, is permitted when any relief is limited to recover from specific property over which the court has can claim jurisdiction. As Wikipedia explains at the link:

On June 24, 1977, in the case of Shaffer v. Heitner, 433 U.S. 186, the Supreme Court of the United States decided that the requirement that the circumstances giving rise to jurisdiction comply with the notion of "fair play and substantial justice" should apply to the quasi in rem jurisdiction questions. The Supreme Court significantly diminished the utility of the quasi in rem jurisdiction because if the case meets the minimum contacts, fair play and substantial justice tests, the action can be brought under the in personam jurisdiction. Quasi in rem jurisdiction, however, can still be an effective option to bring the lawsuit to a particular court because quasi in rem jurisdiction allows litigants to overcome limitations of the long-arm statute of a particular state.

Thus under Schaffer v. Heitner, quasi-in-rem jurisdiction is basically only allowed when the court could have had personal jurisdiction over the case if the defendant had been personally served with process, but it is not feasible to serve the defendant with process and publication (often together with service by mail to the defendant's last known address and the addresses of people like a former attorney or family member with a relationship to the defendant) is a technique reasonably calculated to give actual notice to the defendant.

For example, suppose that someone who owns real estate in Maine gets in a car accident in Maine, and the defendant who lives in China cannot be served with process despite duly diligent attempts to do so. If a process server in China had served the defendant with process, he would have been subject to the jurisdiction of a court in Maine where the lawsuit was filed because the accident that gives rise to the liability took place in Maine. Therefore, a court might assert quasi-in-rem jurisdiction over the defendant with relief limited to the real property in Maine (since a Maine court has jurisdiction over real estate in Maine). The court would then allow the injured victim plaintiff to serve the defendant with process via publication (in the county where the lawsuit is brought) and via mail to the defendant and known associates of the defendant such as a spouse and an employer and a former attorney of the defendant. If the defendant did not file an answer in the case by the deadline, a default judgment would enter against the defendant and an evidentiary damages hearing would be held ex parte (i.e. without anyone representing the defendant there). Then, based upon that hearing a judgment would be entered against the defendant by the court, with collection of the judgment limited to that parcel of real estate in Maine. The real estate could then be seized by the plaintiff in an execution sale conducted by the sheriff, to satisfy the judgment in favor of the plaintiff and against the defendant for the damages caused by the car accident in Maine.

There are two types of quasi in rem jurisdiction: 1) quasi in rem type 1 (QIM1); and 2) quasi in rem type 2 (QIM2). In QIM1, a plaintiff sues to secure a pre-existing claim in the subject property. For example, actions that seek quiet title against another's claim to the property. In QIM2, the plaintiff has no pre-existing claim in the subject property. That is, the property rights of the owner are not in dispute, but rather the plaintiff seeks the property so that they may satisfy a separate claim. For example, a person who walks across another's real property and falls into an open pit might have no pre-existing claim regarding the property, but may initiate a QIM2 action to redress his injury.

The line between in rem and quasi-in-rem type one jurisdiction (e.g. in the context of a foreclosure or an eviction for unpaid rent or enforcement of a personal property security interest where the property is collateral) is obscure and often ignored in practice. Usually, "quasi-in-rem" jurisdiction refers to quasi-in-rem type 2 jurisdiction.

  1. Only Following Duly Diligent Efforts To Secure Personal Service

Service by publication requires truthful statement from the person seeking it that a duly diligent effort has been made to locate and/or serve the defendant against whom it is to be effective in person.

Service by publication is not effective against a known defendant who could have been served personally, unless the defendant had actual knowledge of the service by publication within a reasonable time before the service by publication is held against him or her. See, e.g. Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 491 (1988), In re Sheridan, 117 P.3d 39, 41 (Colo. App. 2004), and Estate of Russo v. Sunrise Healthcare Corp., 994 P.2d 491, 494 (Colo. App. 1999).

In an action where there is a known defendant in an in rem action, service by U.S. mail to a last known address of the known defendant, rather than personal hand delivery of the process to the defendant, is often sufficient.

  1. Service Via An Attorney Is Only Sometimes Available

If the defendant is represented by a lawyer who has answered for the defendant in other aspects of the case, can service be effected just by notifying the lawyer?

This is allowed if the lawyer represents that person in that lawsuit. With only a handful of exceptions (where ex parte motions are allowed) everything filed in court in a case must be served upon every lawyer who has entered an appearance in the case (usually via E-filing these days, but historically, usually by mail).

An attorney for someone is not an agent for service of process upon a defendant unless the process served is within the attorney's scope of representation, normally, as disclosed by a general entry of appearance by the attorney in that particular lawsuit (what constitutes a general entry of appearance is something of a technical issue).

But, if service of process cannot be hand with due diligence upon a party represented by a lawyer in a related case, a court will often order "substituted service" upon the lawyer (and mail to the last known address of the client) rather than, or in addition to, service by publication.

Service upon an attorney does not suffice to establish actual knowledge of service by publication for purposes of issue #2 above.

Or is this covered by attorney client privilege?

Often the attorney cannot be compelled to disclosure to location of the party represented by the attorney due to attorney-client privilege. But, attorney-client privilege is not directly relevant to whether service upon an attorney constitutes effective service upon the client.

  1. Effective Date

Usually, service by publication is in a newspaper that has been determined by law to be sufficient to provide legal notice defined by statute, and it must be published every week for three to five weeks depending on the jurisdiction and circumstances, with the date of service deemed to be the date of the last publication.

Default judgment can be obtained based upon service by publication only on the X days after service that would apply if there was personal service of process upon that person.

  1. Effect Of In Rem Judgment

A judgment against a defendant in an in rem action, does not preclude the plaintiff from bringing a separate action against the same defendant, in personam, seeking money damages. But, the findings of fact and conclusions of law in the in rem action are not binding against the defendant in the subsequent in personam action and instead have effect only with respect to rights in the property at issue in the in rem action.

For example, if you are evicted from real estate in an in rem action where there is service by publication, because you didn't pay the rent, you cannot be obligated to pay a money judgment for the rent unless you are served with personal service or substituted service in that lawsuit or a later lawsuit. And, if it is a later lawsuit, the court's finding in the eviction action that you didn't pay the rent as agreed is not binding against you except for the limited purpose that you are no longer allowed to be in possession of the real estate from which you were evicted and that you can't challenge the validity of the eviction in a counterclaim or collateral lawsuit.

In other words, even if you later prove that you had actually paid the rent that was the basis of the eviction action in a later lawsuit, you are still evicted, because you lost the right to complain about being evicted when you didn't respond to the service by publication.

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