Federal Service of Summons by Publication in NY

[roky]

My friend in California was defrauded of 1 million dollars life savings by several people. A federal lawsuit has been filed. ONE defendant lives in NY and is evading service. He DID live in an inaccessible apartment but may not live there anymore, he has 3 sisters and may live with them but that is uncertain.

Her lawyer says there is NO CASE LAW for service of summons by publication in NEW YORK. (not counting divorce laws)
The nearest case law I can find is Vermont in this federal case which allowed such service.
http://www.websupp.org/data/DVT/105167-DVT.pdf
Clearly federal law allows for service according to state law. NY state law allows for "service in such a manner as the court directs upon a motion without notice".

QUESTION: Does anyone know of the case law CITATION NUMBER for NEW YORK or Federal Court which shows that service by publication IS or IS NOT allowed in a Federal Case involving a NEW YORK defendant????????

I cannot find any case which bears on this on the web. I am aware of the NY LAW: Nail and Mail method but this is problematic since the exact address of defendant is unknown and access to his former? apartment is blocked by the security doorman to the building.

 

[tranquility]

No. Not unless the court determines it. One way to serve is by the state's laws.
One portion of valid NY service is:

# in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.

Federal law requires strict compliance with the rules regarding manner of service.

In Mid-Continent Wood Products, Inc. v. Harris (7th Cir. 1991) 936 F2d 297 held that strict compliance is not excused by findings that "(1) D had actual notice of lawsuit, (2) actual service came "reasonably close" to satisfying Rule 4 requirements, and (3) D's evasive conduct prevented service." (From Rutter's Federal Civil Procedure Before Trial.)

But, the federal methods of service do not include service by publication. (Unless the state allows it under it's rules.)

 

[roky]

No. Not unless the court determines it. One way to serve is by the state's laws.
One portion of valid NY service is:Federal law requires strict compliance with the rules regarding manner of service.

But, the federal methods of service do not include service by publication. (Unless the state allows it under it's rules.)

Thank you for the case citation and assistance. However the case cited does state that evasion of service allows for a
court to refuse to vacate judgment. (28) Therefore I am not sure whether service by publication has ever been allowed in NY.

My question is whether there is a NEW YORK case that shows that NEW YORK LAW allows for service by publication . If there is such a case then wouldnt a federal judge allow by motion service by publication. If there is no NY case that has ever been allowed to be served by publication than the matter is settled.(not counting divorce cases)




26

Even if we agreed with the district court's interpretation of the "substantial compliance" doctrine (which we do not), the facts lead us to believe that ours is a case of "substantial non-compliance." The extent of Mid-Continent's efforts to obtain service on Harris consisted of the following: 1) one certified mailing of the complaint and summons to a business address of Harris (which Harris denies receiving), and neither the envelope containing the complaint and summons nor the return receipt evidencing delivery were ever returned; 2) three attempts at personal service by a private process server over a four-day period at an incorrect address; and 3) a non-certified mailing to the same incorrect address.
28

The third and final factor of the district court's three-part test is whether the "equities" of the case warrant an exception from the usual strict compliance requirement: "Specifically, the focus here is on the conduct of the defendant in responding to the situation." The court cites evasion of process by the defendant as "the most typical example" of this kind of conduct. In support of this factor, the district court relied on Nikwei v. Ross School of Aviation, Inc., 822 F.2d 939, 942 (10th Cir.1987), a case in which the defendant's motion to vacate the default judgment on the grounds of improper certified mail service was denied because the record clearly established that the defendant had refused to accept his mail.
29

The cases cited by the district court involve clear-cut examples of evasion: both involve defendants who specifically refused to acknowledge service and are thus distinguishable. The facts in the case before us fall short of establishing clear and convincing evidence of evasion on the part of the defendant. Unlike the defendants in Nikwei and Benage, there is no evidence that Harris either refused to accept his mail or actually received mail service but refused to acknowledge it. The district court infers evasion on the part of Harris because of the repeated, though faulty, attempts at service of process by Mid-Continent.

 

[tranquility]

While I understand your problem, the answer is NO. There is no way you can serve by publication in New York, unless:

# in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.

Other than that, serve the man. Sorry if that harshes your buzz.

(New York law will allow such if...well, I've already said and you already know.)

 

[You Are Guilty]

Not only do you absolutely need the judge's permission, you also have to prove (and I don't recall the level of proof needed off the top of my head but I believe it was more than "preponderance"), that your failure to serve the other party via the traditional methods was their unavailability and not your incompetence. Generally, you have to show multiple attempts (absolute minimum of 3 each), on different days, at different types of day, for ALL of the other methods, and have a legitimate reason why they all failed, before the judge will even entertain the idea of publication. Simply not being able to get past a doorman is not going to cut it.

That said, if you do jump through all the hoops, even if the judge grants the request, publication costs a fortune. Depending on what paper(s) the court orders you to use, you're likely looking at somewhere between $2k and $5k just in costs.

 

[BOR]

In Mid-Continent Wood Products, Inc. v. Harris (7th Cir. 1991) 936 F2d 297...

This is not applicable to the discussion. The 7th Circuit does not cover NY.

Please do not confuse the poster. The poster specifically asked about NY.

 

[You Are Guilty]

While true, the 2nd Cir. has the same requirement. "Close, but no cigar" won't cut it in any court.