Service by publication

The civil rules allow “service by publication” when a defendant’s residence address is not known.  The rule is seldom-used but the necessary conditions are reasonably easy to meet.

When Service by Publication Is Needed

Most cases I’ve filed were against established companies. Occasionally individuals were named—owner-operators in wage-and-hour cases, for example—but they were co-defendants with the corporate party. There have been exceptions, though. In one recent case, my client had a compelling claim against an individual defendant. The individual had moved, however, and his whereabouts were unknown.

The case arose in a landlord-tenant situation—a strangely twisted one, like a law school essay exam. My client, the plaintiff, became a house-mate with the defendant in a large house. The defendant said he owned the house and had the plaintiff sign a lease and pay a security deposit and rent. But a few months later, the defendant abruptly departed, absconding with the plaintiff’s security deposit and rent. It turned out that a third party owned the house and had leased it the defendant, with a provision prohibiting him from subletting. The owner informed the plaintiff that he was “not allowed on the property after this weekend.”

We had reason to believe that the defendant was collectible and commenced a suit in municipal court. I engaged a private investigator who supplied a new address for the defendant. However, attempts to serve him, by certified and then regular mail, were unsuccessful.

Enter “service by publication.”  In Ohio, this is governed by Ohio R. Civ. P. 4.4(A)(1) and Ohio Rev. Code Ann. 2703.14(L).

Satisfying Rule 4.4(A)(1)

Rule 4.4(A)(1) requires an affidavit from “the party requesting service or that party’s counsel.” The affidavit must establish three conditions.

One, that “service of summons cannot be made because the residence of the [defendant] is unknown.” Rule 4.4(A)(1). Meeting this requirement was not difficult in our case. I filed an “affidavit of counsel” summarizing my investigator’s findings as well as the unsuccessful attempts to serve the defendant at that address.

Two, the affidavit must outline “the efforts made … to ascertain the residence of the party to be served.” Id. I was able to describe extensive efforts in the case in question. Note, however, that these steps could be taken virtually any time a defendant cannot be located. In addition to hiring the investigator, I searched on Google as well as in online records of county and municipal courts. I phoned the owner of the house and inquired about any new address for the defendant. I even tried calling the defendant himself, using a cell phone number I’d obtained from my client.

Three, the affidavit must establish that the defendant’s residence address “cannot be ascertained with reasonable diligence.” Id. On this requirement, we’re aided by case law. Courts hold that no particular steps are mandated. Patrick v. Ellman, 2021-Ohio-4354, at ¶22 (Ohio App., 12th Dist., Dec. 13, 2021). Rather, “what constitutes reasonable diligence will depend on the facts and circumstances of each particular case.” Id. The efforts outlined in the affidavit “give[] rise to a rebuttable presumption that reasonable diligence was exercised.” Franks v. Reynolds, 2021-Ohio-3247, at ¶30 (Ohio App., 7th Dist., Sept. 16, 2021) (quoting Sizemore v. Smith, 6 Ohio St. 3d 330, 331, 453 N.E.2d 632 (1983)). Accord, Patrick, 2021-Ohio-4354, at ¶21.

Showing that Service by Publication “Is Authorized by Law”

Rule 4.4(A)(1) can be used whenever service by publication “is authorized by law.” In Ohio, Revised Code § 2703.14 provides that authorization. The statute allows service by publication where the defendant, “with intent to delay or defraud his creditors or to avoid the service of a summons, … keeps himself concealed.” Id. § 2703.14(L).

When extensive efforts are made to locate a defendant—as we’d shown in our case—the failure of those efforts creates an inference that the defendant is concealing himself with fraudulent intent. Courts recognize that “[a] defendant’s ‘concealment’ may ‘reasonably be inferred from plaintiff’s inability to locate that defendant after the exercise of “reasonable diligence,” as that term is used in Civ. R. 4.4(A).’” Corrao v. Bennett, 2020-Ohio-2822, at ¶19, 154 NE 3d 558 (Ohio App., 8th Dist., May 7, 2020) (quoting Brooks v. Rollins, 9 Ohio St. 3d 8, 11, 457 N.E.2d 1158 (1984)). Accord, Khatib v. Peters, 2017-Ohio-95, at ¶26, 77 N.E. 3d 461 (Ohio App., 8th Dist., Jan. 12, 2017).

Additional facts demonstrated fraudulent intent in our case. The defendant had lied to the plaintiff about owning the house. He’d used a “lease agreement” to rent the premises to the plaintiff, when in fact his own rental agreement with the owner forbade sub-leasing. Most pertinently, he’d suddenly departed from the premises and absconded with the plaintiff’s money. Here again, similar points can probably be made in any analogous situation.

Submitting a Proposed Order

In the case in question, the judge was receptive to our motion for service by publication but the clerk was unfamiliar with the mechanics. A prudent expedient was to submit a proposed order detailing the procedural steps required by Rule 4.4(A)(1).

Under the Ohio rule, the clerk causes a “notice” to published in a newspaper of general circulation in the county. The notice must contain the court’s name and address, the case number, the names of the parties, and the name and last known address of the defendant, “a summary statement of the object” of the complaint, a summary statement of the plaintiff’s demand for relief, and a notification that the defendant is required to answer or respond within twenty-eight days after the publication.

The notice must be published once per week for six successive weeks. Service of process is deemed complete “at the date of the last publication.” Rule 4.4(A)(1) provides that “the publisher or its agent shall file with the court an affidavit showing the fact of publication together with a copy of the notice of publication.” The affidavit and notice “shall constitute proof of service of process.”

Post-Service Considerations

One concern I had was to ensure that the clerk completed all of the steps required by the rule. What if the clerk omitted one of the mandatory items in the notice?  What if the publisher’s affidavit was not filed? Down the road, the defendant could challenge the sufficiency the service, either collaterally or through a motion for relief from judgment. Perfecting the record becomes important.

Note that Rule 4.4(A)(1) merely supplies an unorthodox way of serving the summons.  It is not a default judgment provision. Default judgment pursuant to Rule 55 will require a further motion, following the “deemed complete” service pursuant to Rule 4.4(A)(1).

Whether at trial or in a default judgment hearing, make the record by “proving up” the plaintiff’s damages. It may be wise to submit proposed findings of fact and conclusions of law and urge the court to adopt them. Include a recital establishing the basis for service by publication. Detailed findings by the court may preclude the defendant from mounting a collateral attack later.  But seePhillips Petroleum Co. v. Shutts, 472 US 797 (1985) (“a court adjudicating a dispute may not be able to predetermine the res judicata effect of its own judgment”).

Collecting the Judgment

Shift gears in your thinking once a final judgment has been entered in the action. It may be easier to find a defendant’s money than to locate his or her residence address. Bank attachments are available. In a given case, you might make use of the uniform statute on “fraudulent transfers.” Future posts will cover the latter statute.