Court allows service by publication only after diligent attempts to find defendant

By Marc Rosenberg

A plaintiff’s service of a summons by publication is effective only after he shows diligent efforts to find defendant, that defendant cannot be found, and that defendant is either hiding in Washington or has left the state, the Washington Court of Appeals has held.

In Rodriguez v. James-Jackson, no. 53132-8-I (April 2, 2005), Rodriguez and James-Jackson were involved in an auto accident in March 1998. Later in 1998, James-Jackson and her husband moved from Washington to Texas. She submitted a change-of-address form for the post office and notified her auto insurer of the move.

Two years later, Rodriguez filed suit for his injuries in the accident. In February 2001, Rodriguez’s attorney moved to permit service of the summons by publication and filed a declaration stating that he had tried without success to reach James-Jackson by both regular and registered mail at her old address. The attorney alleged an Internet search for James-Jackson in Washington and Alaska. The court permitted service by publication. After the statute of limitations had run, James-Jackson learned of the suit and moved to dismiss. The trial court granted the motion, and Rodriguez appealed.

The Court of Appeals affirmed, noting that service by publication requires a sworn statement that defendant cannot be found within Washington and is either hiding in the state or has left to avoid creditors or service of process. The controlling statute, RCW 4.28.170, requires not only those allegations, but actual facts to support them. The statute further requires proof of reasonably diligent efforts to find the defendant to effect personal service.