Ruffin v. Lokosky, __Ariz. Adv. Rep. __ 1 CA-CV 17-0353 (App. Div. I, July 12, 2018) (J.Mc Murdie)
DEFAULT JUDGMENT SET ASIDE FOR LACK OF DUE DILIGENCE WHEN PLAINTIFF KNOWING DEFENDANT'S E-MAIL ADDRESS, TELEPHONE NUMBER AND SOCIAL MEDIA ACCOUNTS CHOSE TO SERVE BY PUBLICATION
Plaitniff sued defendant for posts made on a website defendant owned and operated. Plaintiff sued for false advertising and unfair competition, defamation, false light invasion of privacy, and tortious interference.
Plaintiff hired a process server to serve the complaint. A skip trace was run on defendant revealing three addresses. The process server attempted service at all three locations but did not locate the defendant or serve the complaint.
Plaintiff then sought leave to serve the complaint by posting it on the door of two of the three addresses and mailing the complaint to the same addresses. Alternatively the plaintiff requested leave to serve by publication. The trial court denied the request finding the process server had made an inadequate number of attempts to serve the complaint personally during the holiday season.
After one more failed attempt at personal service the plaintiff served by publication in the Gila Bend Sun pursuant to Arizona Rule of Civil Procedure 4.1(l)(1). When Defendant failed to appear, the superior court initially entered a default judgment and awarded Plaintiff $264,062 and injunctive relief. After a subsequent hearing, the superior court vacated its judgment. The Arizona Court of Appeals affirmed.
Rule 60(b)(4) of the Arizona Rules of Civili Procedure allows a party to move to vacate a default judgment when that judgment is void. Under Rule 4.1(l), service by publication may be made “only if (1) “the serving party, despite reasonably diligent efforts, has been unable to ascertain the person's current address,” or (2) “the person to be served has intentionally avoided service of process,” and (3) “service by publication is the best means practicable in the circumstances for providing the person with notice.”
“Because Ruffino had access to Lokosky's email address, phone number, and social media accounts, we hold under Arizona Rule of Civil Procedure 4.1(l)(1) that service by publication without first attempting to communicate with Lokosky by any of those channels did not constitute ‘reasonably diligent efforts' to obtain her address; therefore, publication was not the ‘best means practicable' to provide notice of the lawsuit. We affirm the superior court's order setting aside the default judgment against Lokosky as void for lack of jurisdiction.”
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