Opinion
Civil Action CV-21-335
03-01-2022
MELINDA COLLINS, Plaintiff v. CHRISTOPHER PERRY, et al., Defendants
Plaintiff-Verne Paradie, Esq. Defendant-not served, not appeared
Plaintiff-Verne Paradie, Esq.
Defendant-not served, not appeared
ORDER
Thomas D. Warren, Active Retired Justice
Before the court is plaintiffs motion for service by publication. The motion indicates that plaintiff has employed a private investigator and that the leads as to defendants' whereabouts have been exhausted.
Because service by publication is so unlikely to provide actual notice, Gaeth v. Deacon, 2009 ME 109 ¶¶ 24-26, the court needs further details before it can grant the motion. The standard for service by alternate means as set forth in the 2010 Advisory Committee Note to Rule 4. In this case the court needs to know whether all attempts to locate defendants through social media have been exhausted, whether mail has been sent to the addresses known to plaintiffs, whether the Postal Service has any forwarding orders with addresses, whether motor vehicle registry information has been checked, whether criminal justice files have been checked (particularly in light of the allegation that defendant Perry was driving as a habitual offender), whether out of state records have been checked, and whether there are any persons known to plaintiff who might have relevant information (family members, neighbors etc.).
The 2010 advisory note provides, inter alia, as follows:
Before a party can obtain an order allowing service by any alternate means, that party must first demonstrate that he or she has exhausted all reasonable attempts to make service in one of the other ways prescribed by Rule 4 (or by applicable statute) that are designed to provide actual notice of the action to the party to be served. Whether attempts at locating a party are reasonable will of necessity depend on the situation; likewise, whether a search is limited to one jurisdiction or many may depend on the nature of the parties and claims. Within the framework of any given set of facts, a party seeking an order approving service by publication or other alternate means may seek to show which of the following actions s/he has taken in attempting to serve the party: checked publicly available databases (including computer databases) such as tax records, voting rolls, criminal history records, credit records, telephone directories, divorce or death records, utility records, post office records, and motor vehicle registry records in the jurisdiction where the defendant is most likely to be found. In addition to demonstrating that he has made a reasonable search of available public data, a party seeking an order for publication or service by alternate means should also satisfy the court that he or she has made reasonable efforts to locate the current address of the party to be served by checking private sources: known relatives, former employers, former educational institutions, and former neighbors.
In this connection, the complaint alleges that defendant Perry's license had been suspended as a habitual offender but does not explain the status of defendant Ryder. Motor vehicle registries should be checked as to both. If defendant Perry fled the scene, as alleged, how has he been identified as the driver?
Even if, for example, family members are unwilling to provide information, alternate service could include a provision that service by mail be made on them based on the possibility that they are in touch with the person or persons to be served.
It is also unclear whether separate searches have been made as to defendant Perry and as to defendant Ryder.
It is possible that this has all been done and if so, the exact searches so far and the addresses found need to be specified. The court typically does not limit alternate service to service by publication but requires that other service reasonably calculated to provide actual notice be attempted as well. See M.R.Civ.P. 4(g)(1)(C).
The entry shall be:
Plaintiff's motion for alternate service is denied without prejudice to renewal once further details are provided and/or further searches conducted. The court will extend the deadline for service to May 1, 2022. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).