To Catch an Evader of Service

           Occasionally in litigation, it is necessary to serve either a summons or a subpoena upon an individual who has an interest in not being served with the papers. A “summons” is a notice to a defendant to appear and defend the suit, whereas a “subpoena” is an order to a person to appear as a witness in a case. In the case of a summons, the Maryland Rules anticipate the situation wherein the target of service is attempting to evade service.

           Without service of the Writ of Summons and Complaint, the plaintiff’s claim will go nowhere until the case is dismissed for failure to prosecute. To avoid that consequence, a plaintiff who is having difficulty serving a defendant may ask the Court to enter an Order permitting “alternative service.”

           A recent referral to RSR&M from the Maryland Volunteer Lawyer Service involved a situation where a landlord lived and worked outside of Maryland. RSR&M was asked to represent that landlord’s tenant and suit was filed. The landlord then refused to accept certified letters sent to her. Pursuant to the Rules relating to service, a motion was filed with the Court seeking permission to serve the Defendant by alternative means. Normally, an individual can be served by personal delivery of the relevant documents, or by leaving the suit the papers at the defendant’s dwelling with a resident of suitable age and discretion. The Court may permit alternative service, however, if it is convinced that the plaintiff has, without success, made a good faith effort at effecting service under the normal process.

           In our case, the attorneys at RSR&M prepared a Motion to Permit Alternative Service and proposed Order of Court permitting service by (a) leaving the papers at the rental property, (b) giving a copy to a person of suitable age and discretion, and (c) mailing a copy of the Writ of Summons and Complaint by ordinary mail to the out-of-state landlord. Upon review of the motion, the Court granted it and issued an Order to permit alternative service upon the Defendant. When the steps outlined in the Order had been accomplished, an Affidavit of Service was filed with the Court.

           Despite having taken these meticulous steps to effectuate service, on the day assigned for trial, the case was not on the docket. The reason given by the Clerk was that no Affidavit of Service had been filed. In accord with our standard office practice, we had obtained a date-stamped copy of the Affidavit of Service when it was filed. Thus, prompted by our date-stamped copy, the Clerk resurrected the case folder from the depths of the courthouse for further processing.

           The teaching points are basic: (1) There is more than one way to serve an evading Defendant, and (2) get date-stamped copies of every pleading filed. As of today’s date, no final judgment has been rendered in this matter as the parties await the new trial date.

Article contributed by Patrick Cullen