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constructive notice

Does a Lawsuit End If the Defendant Can’t Be Served?

Remember Seth Rogen's character in Pineapple Express? No, he wasn't a butler -- he was a process server, an obscure yet essential part of the legal system tasked with delivering the bad news of a lawsuit to the person being sued. After all, if people don't know they're being haled into court, it's kind of hard to defend themselves. Because service of process is the necessary first step to a lawsuit, many think if they can just avoid the process server for long enough, they can't be sued (hence Rogen's disguises). But is that true? Fruitless Searching The issue has come to the forefront of the news after Montana real estate agent Tanya Gersh sued the owner of the racist website Daily Stormer, claiming he unleashed a "tsunami of threats" against her and her family. Gersh is being represented by attorneys from the Southern Poverty Law Center, who have thus far been unable to locate and serve Andrew Anglin with the suit. The process servers hired by the SPLC have made a grand total of 15 visits to seven addresses linked to Anglin, including four different Ohio addresses, but couldn't find him. "One process server said she believes Anglin barricaded himself inside one of the addresses," according to Ars Technica. In addition, attempts to serve Anglin via certified mail were all returned as undeliverable. Until he is properly served, the lawsuit against Anglin can't proceed. Constructive Notice But there's another twist to that -- service by publication. If a plaintiff can show the court that no other method of service has been effective, they can publish a notice in a newspaper. So long as the newspaper is in general circulation where the defendant is likely to be found or where the court is located and is published on more than one occasion (like weekly for three weeks), the court will consider the defendant served, whether he or she actually reads the notice or not. Gersh's attorneys have allegedly begun this more cumbersome and expensive procedure already. The perhaps not-so-funny part about the efforts to serve Anglin in this case is that he is plainly aware of the lawsuit. Soon after the lawsuit was filed in April, he published a post on Daily Stormer entitled, "SPLC is Suing Anglin! Donate Now to STOP THESE K***S!" He retained Las Vegas attorney Marc Randazza, who told the AP, "Everybody deserves to have their constitutional rights defended." Randazza also addressed the service problems and accusations that he had ignored calls and emails from SPLC attorneys asking him to accept service on behalf of his client, albeit rather obliquely. "Would you say that touchdowns are avoiding being scored in a shutout football game?" he rhetorically asked the New York Times. "Or would you say that the offense is not scoring them?" A defendant has no legal obligation to assist the plaintiff in a lawsuit, including making themselves available for service. Fortunately for plaintiffs, hiding from a lawsuit they clearly know exists won't help a defendant avoid being held accountable in court. Related Resources: Find a Lawyer Near You (FindLaw's Lawyer Directory) Don't Bother Avoiding Process Servers (FindLaw's Law and Daily Life) Legal How-To: Showing Proof of Service (FindLaw's Law and Daily Life) Can You Serve Someone With a Lawsuit via Twitter? (FindLaw's Law and Daily Life)
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When Can You Serve Someone via Publication in a Newspaper?

Serving the other side with notice of a lawsuit is typically done in person or through the mail. In some cases, however, a person may be served by publication in a newspaper. Following the filing of a complaint -- the document which describes the lawsuit and identifies the parties involved -- the party filing the lawsuit must complete what is known as "service of process." There are typically very specific rules for how service must be completed, depending on the type of case and the jurisdiction in which it is being filed. Generally speaking, however, when can you serve process via publication? When All Else Fails... Typically, a plaintiff is first required to attempt to locate the defendant and serve him or her through personal service -- in which a defendant is personally handed the summons and complaint -- or substitute service in which the papers are left at a defendant's home or business, or delivered via certified mail. Many times, a person who may not know where to find a defendant can hire a professional process server to accomplish service of process. However, when the defendant is unable to be located or avoids being served by other means, a plaintiff may be able to request to serve the defendant via publication, usually in a newspaper or other widely distributed publication. The notice is then posted in a newspaper or publication approved by the court for the required length of time. In California family law cases, for example, the required document must be published once a week for four weeks in a row. How Does Service by Publication Work? Service of process is intended to put the defendant on notice of a lawsuit and give him the opportunity to defend himself should he so choose. In order to proceed with the lawsuit, the plaintiff filing the lawsuit must show that he has put the defendant on notice by showing proof of service. In the event that service by publication is allowed, the defendant is typically considered to have been put on constructive notice. Constructive notice does not require that the defendant ever actually received notice of the lawsuit, only that the means by which process was legally sufficient to fulfill the notice requirement. If you need help with your lawsuit, a lawyer who specializes in civil litigation can explain the legal options available for service of process. You can also find more tips for how to sue at FindLaw's section on Filing a Lawsuit. Related Resources: Find a Lawyer by Practice Area and Location (FindLaw) Legal How-To: Responding to a Lawsuit (FindLaw's Law and Daily Life) Proof of Service Can Often Prove Tricky (FindLaw's Law and Daily Life) Kesha, Dr. Luke's Lawsuit, and the Chicken-Sticker Process Server (FindLaw's Celebrity Justice)
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