Greene v. Lindsey, 456 U.S. 444, 453-56, 102 S.Ct. 1874, 1879-81, 72 L.Ed.2d 249 (1982). The mailing requirement was added in 1984; its timing suggests that it was enacted in response to the Greene decision. Frank Emmet Real. Estate, Inc. v. Monroe, 562 A.2d 134, 136 n. 5 (D.C. 1989). The words of § 45-1406, literally construed, are wholly consistent with the apparent constitutional imperative; if you post, then you must mail, or the posting will not comport with due process.
In Frank Emmet Real Estate, Inc. v. Monroe (" Monroe "), this court made clear that, in order to prove that a tenant "cannot be found ," the landlord must make a " ‘diligent and conscientious effort’ ... to either find the defendant to effect personal service or to leave a copy of the summons with a person ‘residing on or in possession of the premises.’ " 562 A.2d 134, 136 (D.C. 1989) (quoting Westmoreland v. Weaver Bros. , 295 A.2d 506, 509 n.12 (D.C. 1972) ) (emphasis added). Consistent with that obligation in this regard, we have also stated that "posting is the least favored form of service and [should be] used only where attempts at personal or substituted service have failed."
Id. In our view, this appeal is controlled by Frank Emmet Real Estate, Inc. v. Monroe, 562 A.2d 134 (D.C. 1989) (hereinafter Monroe). In that case, the court was called upon to construe § 16-1502, and the question presented was very similar to the issue in this case.
Id. ; see also Carrasco , 988 A.2d at 476. In support of this point, the trial court cited Frank Emmet Real Estate, Inc. v. Monroe , 562 A.2d 134, 134 (D.C. 1989), and Hernandez v. Banks , 84 A.3d 543, 558 (D.C. 2014). These cases affirm decisions vacating defaults against tenants on grounds of improper service, see Frank Emmet Real Estate , 562 A.2d at 134 (default judgment); Hernandez , 84 A.3d at 558 (default), but they do not suggest that defective service is the only basis on which a since-evicted tenant can obtain relief. Moreover, in the circumstances of this case we have some concern about giving too much weight to the fact that Ms. Reshard has been evicted and the resulting prejudice to Ms. Stevenson.
See D.C. Code § 16-1502 (2001).See Edelhoff v. Shakespeare Theatre at the Folger Library, Inc., 884 A.2d 643, 645-46 (D.C. 2005) (quoting Frank Emmet Real Estate, Inc. v. Monroe, 562 A.2d 134, 136 (D.C. 1989)). Rule 60(b)(6) permits the trial court to relieve a party from a final judgment "upon such terms as are just" for "any other reason justifying relief."
Posting is a disfavored method of providing notice because it is less reliable, generally speaking, than other appropriate methods and hence may raise serious due process concerns. See Frank Emmet Real Estate, Inc. v. Monroe, 562 A.2d 134, 136 (D.C. 1989). "Thus, although the statute does not expressly so require, it is a prerequisite to posting that a `diligent and conscientious effort' be made by the process server to either find the defendant to effect personal service or to leave a copy of the summons with a person `residing on or in possession of the premises.'" Id. See also Parker, 451 A.2d at 65 ("[T]he judicially construed requirement of diligence was designed to prevent the commencement of actions for possession where . . . further efforts on the part of the process server could have avoided utilization of the least preferred method of effecting service of process.") (internal quotation marks and citation omitted).
Therefore, we agree with the motions court that Mr. Pelkey's reason for defaulting was insufficient to bar ECL's claim for possession. Relying on Frank Emmet Real Estate, Inc. v. Monroe, 562 A.2d 134 (D.C. 1989), Mr. Pelkey argues that "the landlord [here] was well aware of the fact that the tenant often left the District for extended periods, and knew that the tenant was in California." (Br. for App. at 29).
In this regard, we have followed a similar approach in the related context of notice by service of process. See Frank Emmet Real Estate, Inc. v. Monroe, 562 A.2d 134 (D.C. 1989) (recognizing "significant constitutional overtones" in construing statute permitting posting). Had the notice of expiring redemption period not been returned, the District's mailing of that notice would have comported with the Council's regulation and been constitutionally adequate, since service by mail is reasonably calculated to give notice in most circumstances.
. (See, Mennonite Bd. of Missions v Adams, 462 US 791, 796 n 3 [1983]; Greene v Lindsey, 456 US 444, 455 [1982]; Frank Emmet Real Estate Inc. v Monroe, 562 A2d 134, 136 [DC App 1989].) With the passage of time, and the disappearance of its original basis, the rule of McDonald was misstated. As in a game of "telephone," it became garbled and broadened.
Service of process is thus now permitted — against residents and non-residents alike — by any method reasonably calculated to give a defendant actual notice of the proceeding. See, Mennonite Board of Missions v. Adams, 462 U.S. 791, 796 fn. 3 (1983); Greene v. Lindsey, 456 U.S. 444, 455 (1982); Frank Emmet Real Estate v. Monroe, 562 A.D.2d 134, 136 (D.C.Ct.App. 1989). With the passage of time, and the disappearance of its original basis, the rule of McDonald was misstated.