In the recent case of Ruffino v Lokosky, No. 1 CA-CV 17-0353 (July 12, 2018), the Arizona Court of Appeals set aside a default judgment on the grounds that the Defendant, Lokosky, had not been given proper notice of the lawsuit. Ruffino, the Plaintiff, hired a process server who performed a “skip trace” to find where the defendant was living in order to serve the Defendant. The search came up with three potential residences. The process server went to the first residence and spoke with the Defendant’s mother, who stated that the Defendant did not live there. At the second residence, the process server was told that the person living there was a renter and that the Defendant did not live there. After six unanswered attempts at service, the process server determined that the third residence was unoccupied. The Plaintiff then requested permission from the court to allow service by posting at the first two addresses, mailing at the third, or by publication. The court denied the request stating that only one attempt had been made to serve the Defendant at the first two addresses and that those attempts had been made during the holiday season. After one more unsuccessful attempt to serve the Defendant at the first address and without mailing a copy of the summons and complaint to any of the addresses, the Plaintiff served the Defendant by publication. A default judgment was thereafter entered for damages and for injunctive relief, allowing the Plaintiff to take control of the Defendant’s website. When control of the website was transferred to the Plaintiff, the Defendant immediately moved the court to set aside the default judgment. After an evidentiary hearing, the court set aside the default judgment, finding that the Defendant received insufficient service.
On appeal, the Arizona Court of Appeals agreed that the Defendant had not been served properly and that, notwithstanding the “skip trace,” the Plaintiff had not demonstrated “reasonably diligent efforts” to determine the Defendant’s address. In this dispute that arose from internet conduct, the Court of Appeals found that a “reasonably diligent effort by Ruffino would have included reaching out to Lokosky via telephone, email, or even social media to verify her correct address.” In addition, the Court of Appeals found that service by publication was not the best means practicable to serve the Defendant. Instead “modern methods of communication, especially email, were more likely to give Lokosky notice of a suit than publication in a newspaper distributed in a rural area 70 miles from Lokosky’s Scottsdale home.”
Ruffino v. Lokoskyhas moved the requirements for valid service of process into the digital age. If “more practicable channels of communication are available,” a serving party must now first attempt to contact the other party via those methods (i.e. cell phone and/or email, Facebook, Twitter, Instagram or other social media) to demonstrate that they have made “reasonably diligent efforts” to determine the address. In addition, those same methods must be considered before service by publication is permitted.