Service by Publication After a Failed Skip Trace
A landlord sues a former tenant for $9,400 in unpaid rent and $3,100 in property damage in a state court that follows a rule requiring a diligent search before service by publication. The lease lists an address the tenant vacated 14 months ago. Counsel mails a notice to that address (returned 'no forwarding'), checks two free online directories, and posts notice in a local newspaper once a week for three weeks. The tenant, actually living 40 miles away with a new job, never appears, and default judgment enters on day 45. Five months later the tenant moves to vacate, arguing service was constitutionally defective and that the judgment is void. The landlord argues the newspaper notice satisfied due process and that the motion is untimely.
1. Does the publication service satisfy due process, and what should the court decide?
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This is a constitutional minimum-contacts-to-notice question, not a checklist exercise. Due process requires notice 'reasonably calculated' to reach the party. Publication is a last resort; it is acceptable only when the party's whereabouts cannot be found after a diligent search.
Apply the facts: counsel checked two free directories and mailed to a known-stale address. That is thin. A diligent search would normally include a paid skip trace, a check of the tenant's employer or known relatives, a search of public records (voter, DMV, property, court records), and a certified-mail attempt. The 40-mile move and current employment make the tenant readily locatable. On these facts the search was not diligent, so publication was not reasonably calculated to give notice and the default judgment is vulnerable.
Practical conclusion: the court should find service defective. Because a judgment entered without adequate notice is void, it can be attacked even after the ordinary time to move to vacate has run.
2. How should the court handle the landlord's timeliness argument?
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Distinguish void from voidable. A judgment entered without proper service is void, and a void judgment may be attacked at any time, so the five-month delay does not bar relief. If the defect were merely irregular (voidable), the motion would be subject to the usual deadline and likely untimely.
The court should also weigh the tenant's own conduct: did the tenant leave a forwarding address, evade service, or have actual notice? Actual notice cures many defects. But nothing in the facts shows actual notice, and the tenant's move was not concealment.
Result: deny the timeliness defense, vacate the default, and allow the case to proceed on the merits. The landlord may re-serve at the tenant's current address.