Lake Worth, FL asked in Civil Litigation for Maryland

Q: How to get information on doing a publication by a newspaper to properly file a motion for alternate service?

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1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Rockville, MD
  • Licensed in Maryland

A: First, you only file a mtion for alternative service of process when the normal methods of service of process on the defendant, despite good faith diligent attempts, have failed, and renewal of summons for similar future attempts would be impractical or unlikely to succeed. The usual reasons for failure of the normal means of service (personal delivery, or certified restricted mail) commonly involve situations where the defendant is actively evading service or their whereabouts are simply unknown because they have left their ast known residence and left no forwarding addresses and no means to track them to their present whereabouts. The Maryland Rule that applies for circuit court cases is 2-121, which provides in relevant part:

(b) Evasion of service. — When proof is made by affidavit that a defendant has acted to evade service, the court may order that service be made by mailing a copy of the summons, complaint, and all other papers filed with it to the defendant at the defendant’s last known residence and delivering a copy of each to a person of suitable age and discretion at the place of business of the defendant.

(c) By order of court. — When proof is made by affidavit that good faith efforts to serve the defendant pursuant to section (a) of this Rule have not succeeded and that service pursuant to section (b) of this Rule is inapplicable or impracticable, the court may order any other means of service that it deems appropriate in the circumstances and reasonably calculated to give actual notice.

For cases in the District Court, Rule 3-121 is identical. Service by publication is one option, but not likely the best option to provide actual notice to the defendant. Depending of the circumstances of your particular case, however, that may prove to be the only available means, together with posting at the courthouse and mailing to the last known address. The court decides whether to grant your motion, and what methods of service will be ordered, although it is on the plaintiff to adequately support their motion with a factual basis by way of an affidavit of the specific diligent attempts made to effectuate service that have failed, with sufficient facts about the defendant's last known and possible current whereabouts to provide the court with a basis to order the type of service you are proposing. It is common to propose multiple means (e.g., by delivery and mailing to the defendant's last known residential address, mailing to a known close relative of the defendant where the defendant is known to frequent or stay, etc.). If you are choosing publication by newspaper, it seems highly unlikely the defendant or anyone would read such a notice; however, in cases where the defendant's whereabouts are wholly unknown, that may be the only option along with posting at the courthouse. To support that, you should probably attach an affidavit or report by a private investigator retained to perform a skip trace on the defendant, setting forth the results of that skip trace and the reasonable and unsuccessful efforts made. There is no rule as to the specifics of what service by publication is supposed to look like, but there are a number of legal proceedings, such as the required publication in estates, name change petitions, and foreclosure matters, which provide a template of what is normally deemed sufficient: notice for three consecutive weeks in a local newspaper of general circulation within the imediate jurisdiction of the court.

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