Opinion
Case No. 05-35912.
November 16, 2005
DECISION AND ORDER
The debtor has moved the Court to permit service of his Chapter 7 filing by publication. Debtor, through his attorney, advised the Court that he has attempted to serve by mail eight individuals who were occupants of a school bus with which debtor's car collided. Debtor represents that he mailed notice of his bankruptcy petition to these individuals using addresses obtained from the official accident report, the business utilizing the bus service, the bus company manifest and the Wisconsin Circuit Court Access Program (CCAP). The mailings were returned as undeliverable with no forwarding address.
Here, the court requires the debtor to make additional efforts to demonstrate reasonable diligence.
ANALYSIS
Certainly it is in the best interests of the debtor for purposes of obtaining finality — and it is a fundamental requirement of due process — that the interested parties be apprised of the pendency of an action and afforded an opportunity to present objections. See e.g. Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306 (1950).
Rule 4(e) of the Federal Rules of Civil Procedure provides that service upon an individual may be effected in any judicial district of the United States pursuant to the law of the state in which the district court is located.
Wis. Stats. § 801.11(1) provides:
(c) If with reasonable diligence the defendant cannot be served under par. (a) or (b), service may be made by publication of the summons as a class 3 notice, under ch. 985, and by mailing. If the defendant's post-office address is known or can with reasonable diligence be ascertained, there shall be mailed to the defendant, at or immediately prior to the first publication, a copy of the summons and a copy of the complaint. The mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence.
The plain meaning of Wis. Stat. § 801.11(1) requires service under para. (a) to be attempted with "reasonable diligence" before an alternative method of service is employed. Thus, although publication is an appropriate means of service, the debtor must first show reasonable diligence in attempting to effectuate service by mail.
The meaning of reasonable diligence has been described as follows:
The diligence to be pursued and shown by the affidavit is that which is reasonable under the circumstances and not all possible diligence which may be conceived. Nor is it that diligence which stops just short of the place where if it were continued might reasonably be expected to uncover an address . . . of the person on whom service is sought.
Haselow v. Gauthier, 212 Wis. 2d 580, 589, 569 N.W.2d 97 (Ct. App. 1997) (citation omitted).
Due diligence is factual in nature and varies from case to case. For example, in Haselow the court held that the plaintiff had not shown reasonable diligence to effectuate service when he was told that the defendant was in Hawaii but made no attempt to locate the defendant there before proceeding with substitute service. In contrast, in U.S. Bank v. Matthews, 2005 U.S. Dist. LEXIS 24430 (N.D. ILL. 2005), publication was deemed to be an appropriate means of service where the process server checked the social security death index, credit reports, motor vehicle, license and voter registration databases, court records, telephone listings, property ownership records, tax lien records, and postal records, and confirmed that the residence in question was vacant.
While the Matthews case may be an extreme example of efforts made to serve an individual by mail, there must be some showing of due inquiry. Here, the debtor has made one attempt at service — a single mailing to the eight individuals. This mailing was directed to the address the debtor obtained from sources directly connected to the car accident in question. It is possible that these individuals may have moved since the time of the accident, or may always have resided at an address different from the one obtained by the debtor. In the interests of all parties these possibilities require some examination and could easily be performed using some other methods of address verification. For example, the debtor could check telephone books, conduct an Internet search or otherwise make an effort beyond the first mailing that would demonstrate due diligence.
Accordingly, the Court concludes that the debtor must demonstrate due diligence in his efforts to effectuate service before the Court will consider allowing service by publication. The Court certainly will entertain this motion again if the debtor is able to show further diligence and still is unable to serve the named individuals.
CONCLUSION
IT IS ORDERED that the Debtor's Motion to Permit Service of Chapter 7 Filing by Publication is hereby denied, without prejudice and subject to renewal upon a showing of due diligence.