Publication Service Improper Despite Sheriff's Five Attempts

Even though an insurance company attempted personal service five times at a defendant’s Raleigh home, the insurer also had to try certified or registered mail before turning to service by publication, the Court of Appeals has ruled in an unpublished opinion.
The insurance company got an entry of default in 2001 but a trial judge later set it aside, saying service by publication was improper. The appeals panel affirmed that ruling.
Rule 4 allows for service by publication as a last resort when a party “cannot with due diligence be served by personal delivery, registered or certified mail, or by a designated delivery service.”
The ruling shows that due diligence requires plaintiffs to go down the list of delivery methods, including registered mail, before moving to service by publication — even if multiple attempts have been made at personal delivery.
While the insurer attempted service by certified or registered mail at the defendant’s old address in Sanford, it did not make a similar effort at her new Raleigh home. That service defect rendered the entry of default void on jurisdictional grounds, the appeals panel said.
The Nov. 16 opinion is Gulf Insurance Company v. Pollution Technology, Inc. (North Carolina Lawyers Weekly No. 04-16-1410, 7 pages). Judge Sanford L. Steelman Jr. wrote the opinion. Judges Martha Geer and Eric Levinson concurred.
Fayetteville attorney Robert A. Hasty, who represented the insurer, argued his client exercised due diligence in its service efforts.
“We argued there was no requirement that you go through the whole list under Rule 4 in trying the sheriff and certified mail, and that the essential requirement was that you use due diligence,” Hasty said.
“The facts show that the sheriff went out to the defendant’s house five times, and we know from her affidavit in the record that she saw the notice, and that she knew she was being sued,” he said. “Under those facts, we believe we met the due diligence requirement.
“The rule seems to be that even if you know someone is at an address, you should use certified mail after the attempts at personal delivery,” Hasty said. “We also cited a case that said if you diligently use one of the enumerated methods, and don’t get service, then service by publication is permissible. But the court is apparently saying we need to do all of the above first.”
Facts
Gulf Insurance Company filed a lawsuit for breach of contract and other claims on Oct. 26, 2000 against several defendants, including Donna M. Mast.
Sometime after executing the contract, but before she was sued, Mast moved from her home in Sanford to Challenge Road in Raleigh.
Gulf Insurance first attempted to serve Mast by mailing a copy of the summons and complaint by certified mail to her Sanford address. The summons and complaint were returned undelivered but indicated Mast moved to Raleigh.
Gulf Insurance had an alias and pluries summons issued and used the Wake County Sheriff’s Department to attempt service at Mast’s Raleigh home. The sheriff’s department unsuccessfully tried to serve her five times during normal business hours, and on three of those visits left a note on the door indicating that Mast could pick up the summons and complaint at the sheriff’s department.
According to the opinion, “Defendant saw the notes, but made no attempt to pick up the summons and complaint, as she believed her husband would take care of the matter.” He was also named as a defendant in the lawsuit.
The Wake County Sheriff’s Department returned the summons and complaint unserved to Gulf Insurance and said it was “unable to locate [defendant] prior to expiration.”
Gulf Insurance then attempted service by publication, as provided for under Rule 4(j1) and filed an affidavit of service by publication on April 3, 2001.
When Mast did not answer, Gulf Insurance moved for and received an entry of default in Cumberland County on April 30, 2001.
In July 2001, Mast moved to set aside the entry of default. Judge Robert F. Floyd Jr. granted that motion, ruling service by publication was improper. Judge Floyd also granted Mast’s motion to dismiss the action under Rule 12(b)(4), 12(b)(5) and 12(b)(6).
Gulf Insurance appealed.
Ruling
Gulf Insurance argued that the trial court erred in granting defendant’s motion to dismiss for insufficiency of service. The company said it used due diligence in its attempts to serve Mast before turning to service by publication.
The appeals panel disagreed.
Under civil procedure rule 4(j), a person must be served “by delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein” or “by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.”
Rule 4(j1) allows for service by publication when a party “cannot with due diligence be served by personal delivery, registered or certified mail, or by a designated delivery service.”
Under settled case law, due diligence requires the plaintiff “to use all resources reasonably available to her in attempting to locate defendants,” the court said, citing Fountain v. Patrick, 44 N.C. App. 584, 586, 261 S.E.2d 514, 516 (1980). Service by publication is improper “where the information required for proper service of process is within plaintiff’s knowledge or, with due diligence, can be ascertained,” the Fountain case states.
Gulf Insurance did not meet that due diligence standard, the Mast panel said,
“The trial court’s unchallenged findings of fact show that plaintiff knew, or should have known, that defendant resided at the Challenge Road address when service of process was attempted, and that plaintiff did not attempt service by certified or registered mail at that address,” the Mast court said. “Rule 4(j1) states that service of process by publication is only appropriate when the party ‘cannot with due diligence be served by personal delivery, registered or certified mail….'”
Gulf Insurance made no attempt to serve Mast by certified mail at the Challenge Road address, the appeals panel said in affirming the trial court.
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