Alternative Service Appropriate When Ordinary Service Fails
February 01, 2011
Blair v. Burgener, 598 Ariz. Adv. Rep. 26 (App. Div. II, December 29, 2010) (J. Vasquez)
ALTERNATIVE SERVICE OF PROCESS UPON PERSON AT FRONT DESK OF DEFENDANT'S OFFICE AND BY MAIL WHERE PROCESS SERVER MADE 5 ATTEMPTS TO SERVE DEFENDANT AT HOME AND 7 ATTEMPTS TO SERVE DEFENDANT AT OFFICE BUT WAS ALWAYS TOLD DEFENDANT WAS NOT IN
In this breach of contract, fraud and civil conspiracy action the plaintiff attempted to serve the defendant by process server. The process server made numerous attempts to serve the defendant at his home and at his office. Five times the process server attempted to serve the defendant at home no one ever answered the door. Seven times he attempted service at the office he was always told the defendant was not there. Plaintiff was then given leave by the court to serve the defendant by alternative means--serve the person "in charge" at the office and by mail with the court order. The process was then served upon a woman working at the front desk of the office who refused to give her last name or proof of identity and by mail to the business address. The defendant did not enter an appearance and the plaintiff obtained a $252,000 default judgment. Thereafter the defendant moved to set aside the default which was denied.
On appeal, the court first noted that the defendant failed to provide the court with the record of the argument on the motion to set aside and therefore concluded that record along with its own understanding of that the process server had made 12 attempts to serve process in person, met the standard under Rule 4.1(m) of the Arizona Rules of Civil Procedure which allows the court to order alternative service when normal service is "impractical, extremely difficult or inconvenient" and therefore valid.