Service with a Smile.

Stop me if you’ve heard this one: “Guy walks into a bar. The next time, he ducked.” This punch line is one you don’t see coming. It bucks the traditional structure of the classic “Guy walks into a bar . . .” joke.

We depend on structure; we want things to be done a certain way. It ruffles our feathers when something takes us by surprise. The legal world is no different. Aside from the many statutes and cases that build the substantive parts of the law, there are also procedures: rules that help judges, lawyers, and even real people, know what’s coming around the corner and remind us to duck.

One such area we depend on is service of process. If I am involved in any sort of civil claim or lawsuit, and I don’t know that I’m involved, that’s a problem. Specifically, it’s a problem with the Due Process Clause of the 5th and 14th Amendments. Each state has rules on how somebody is “served” with notice of a lawsuit or legal proceeding. Indiana’s are found in Trial Rules 4 through 4.17. In general, I should be served with papers that identify me as a party to the case and tell me I have a certain amount of time to respond (i.e., a “Summons”); plus a copy of whatever document the other party filed to start the case (typically a “Complaint”).

Urban Myth #27: If my credit card company can’t find me they can’t sue me.

Wrong. Your credit card company, or anybody else who wants to sue you, doesn’t have to physically place documents in your hand and proclaim the magic words “You’ve been served.” While some people are served in this dramatic Hollywood fashion, private process services can be expensive and in Indiana this just isn’t how most lawsuits start. Also, Trial Rule 4.16 says that anyone who refuses service cannot challenge service. So, if you try to dodge service, you’re served. So much for playing hide-and-seek with lawsuits.

As an individual, I can get served the Summons and Complaint one of four ways:

1. By somebody handing me a copy personally.
2. By sending me a copy by certified mail, with a return receipt to prove I received it.
3. By leaving a copy in my door and sending a copy regular mail; or
4. By publication in a local newspaper.Your response might be: “What if I don’t get the newspaper? I don’t read those notices! I’m too busy reading my unsigned letter to the editor and that crazy Beetle Bailey! That dude has been in the army for like sixty years. Doesn’t he get a pension or something?”

Well, you have a point. About service by newspaper, not comic strip character retirement plans. Service by publication is supposed to be a last resort, used only if the person “cannot be served personally, cannot be found, has concealed her whereabouts, or has left the state.” In re Paternity of R.L.W., 643 N.E.2d 367, 369 (Ind. Ct. App. 1994). T.R. 4.5, 4.13. If you want proof that the effectiveness of service by publication is still a hot topic, check out the recent oral arguments in the Indiana Supreme Court over this issue in the case Matter of Adoption of L.D. around minutes 30 to 33. Parties, or lawyers, who publish notice without trying to achieve service of process some better way may be violating important Constitutional protections.

I know that none of us like to hear from telemarketers or receive junk mail. But before you get that unlisted address and number and try to live completely “off the grid” consider what would happen if someone wanted to sue you some day. If they can’t find you through normal means, you may leave them with no choice but to serve you by publication, which you probably won’t actually see. You’ll lose by default and then complain that you didn’t know you were being sued.

This may seem obvious, but it’s much harder to fight a lawsuit after you’ve already lost.

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Author: T. Andrew Perkins

I have practiced law in Rochester since 2001. My practice is varied: appellate law; general civil litigation; real estate; family law; and probate and estate planning. I am an active member in the Peru Grace Brethren Church. I have also served on the boards of various community organizations, including: Fulton County Community Foundation, Fulton County Leadership Academy, Fulton County United Way, Rochester Kiwanis Club, Fulton County Council on Aging, and the Fulton County Chamber of Commerce. You can reach my office from the Links page.

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