The best civil in the world will not be able to survive to the trial phase if the court determines there is insufficient service of process.
The reason is that service of process lays the foundation of personal jurisdiction, which refers to the court’s jurisdiction over the parties involved in a civil action. Service of process is required in all lawsuits. Absent this, there can’t be a valid lawsuit.
Only following plaintiff’s proper service upon a defendant is jurisdiction obtained by the court over the defendant to impose and enforce judgment of liability and damages.
Service of process is the procedure by which a plaintiff in a lawsuit gives fair notice to defendant of a legal action. This enables the other party to respond before the court in the proceedings and to be an active participant.
Thus, failure to obtain proper service on a defendant is almost certain to result in a dismissal of the lawsuit for a lack of jurisdiction by the court.
Further, it’s worth noting if the applicable statute of limitations runs out before service of process, plaintiff may forever lose the opportunity to seek compensation from that defendant.
Of course, our Montgomery car accident lawyers know well that some defendants are deft at evading service of process. They make themselves scarce and difficult to locate so that service of process will be tough.
In these cases, plaintiffs still have a duty to exhaust all reasonable efforts to locate defendant and issue proper service of process. In some cases, however, courts will allow service of process by publication, which means advertisement in an approved publication can substitute for personal service. However, courts do try to avoid this if they can.
In the recent case of In re Malm v. Villegas, the Colorado Supreme Court refused to allow a case to move forward when plaintiff, a car accident victim, notified the court she had located defendant in Germany for process of service. The problem was that announcement came six years after the case had been marked inactive and closed.
According to court records, the action was commenced in December 2005 following personal injuries sustained in a 2002 car accident. The filing was just one month shy of the expiration of the statute of limitations on the case.
The following September, plaintiff could not find defendant and moved to establish in rem jurisdiction by instead attaching defendant’s insurance company and accomplishing service through publication. Plaintiff demonstrated service by publication.
However, insurer moved to dismiss on grounds of lack of personal jurisdiction. Court denied the motion, finding plaintiff should be granted more time to find defendant and attempt personal service.
Some 12 months later, plaintiff filed a status report indicating she could not find and personally serve defendant, and asked the court take no further action at that time. The court agreed, and marked the case inactive and closed, though it did order plaintiff to provide a status update in three months on her attempt to serve defendant. She was invited to reopen the case once defendant was located.
A status update was filed three months later, with plaintiff indicating she could not locate defendant, but she would notify the court when she did.
There was zero activity on record for the next five years, until June 2013. At that time, plaintiff moved to reopen, alleging investigators got a lead earlier in the year that defendant was residing in Germany, and was personally served in accordance with the Hague Convention.
District court granted her motion in August 2013.
However, once the case was reopened, defendant moved to reconsider, asserting plaintiff failed to make reasonable efforts to serve her once the case closed in 2007.
Plaintiff countered she had retained a total of six private investigators and no leads had proven productive until August 2013.
District court allowed the case to proceed, finding the state did not specifically define what constituted a “reasonable” amount of time, and plaintiff had made significant efforts to further prosecution.
The state supreme court reversed, finding extension of such service beyond the applicable statute of limitations is only reasonable when there is some wrongful conduct by defendant or formal impediment to service – not simply that plaintiff can’t find defendant, no matter how extensive his or her efforts.
The court held that “by virtually any standard,” 7.5 years between filing and service far exceed the period required to set specific jurisdiction. This would have effectively almost tripled the statute of limitations from the date of alleged negligence to date of service. Absent evidence defendant intentionally evaded service – which plaintiff did not have – the case could not move forward.
Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.
In re Malm v. Villegas, Jan. 20, 2015, Colorado Supreme Court
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