Motion for alternate service questions.

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Latest post 04-01-2010 6:28 PM by adjuster jack. 5 replies.
  • 04-01-2010 4:11 PM

    • mkc1982
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    • MI
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    Motion for alternate service questions.

    Hello,

    I have filed a case in the small claims court for my district (in Michigan) and my process server has attempted four times to serve the papers to the defendant. Previously, we had to go through many steps to get the defendant's current address, but finally we got it and on the first visit the mother of the defendant informed my process server that yes, the defendent lived there but no, she was not home. Since then, the process server has been there three times where either there is no answer or the person who answers the door says the defendant is not home. The court tells me I need "ample" proof to get a motion for alternate service. I have the statement of the process server and also the form from the Post Office giving me her new address.

     

    What exactly is "ample proof"?

    Thank you :)

  • 04-01-2010 4:26 PM In reply to

    • Drew
      Consumer
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    • Joined on 03-30-2000
    • PA
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    Re: Motion for alternate service questions.

    I'm not up on rules--but does service upon adult member of household count in your state?



  • 04-01-2010 4:32 PM In reply to

    Re: Motion for alternate service questions.

    Drew:
    I'm not up on rules--but does service upon adult member of household count in your state?

    No.

     

    • Michigan Rule 2.105:
    • Process may be served on a resident or nonresident individual by,
    • delivering a summons and a copy of the complaint to the defendant personally; or
    • sending a summons and a copy of the complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee. Service is made when the defendant acknowledges receipt of the mail. A copy of the return receipt signed by the defendant must be attached to proof showing service under subrule (A)(2).

     

    And we all know that the defendant will duck certified mail.

     

    • Case Notes:
    • As a matter of public policy, courts want to avoid overuse of substitute service and default judgment it can cause. Sechler v. Van Hoey, 83 Mich.App. 252, 268 N.W.2d 364 (1978).
    • A truly diligent search for an absentee defendant is absolutely necessary to supply a fair foundation for and legitimacy to ordering of substituted service. Kreuger v. Williams, 300 N.W.2d 910 (Mich. 1981); appeal dismissed 101 S.Ct. 3102, 452 U.S. 956.

     

    • Discretion of the Court.
    • On a showing that service of process cannot reasonably be made as provided by this rule, the court may by order permit service of process to be made in any other manner reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard.
    • A request for an order under the rule must be made in a verified motion dated not more than 14 days before it is filed. The motion must set forth sufficient facts to show that process cannot be served under this rule and must state the defendant's address or last known address, or that no address of the defendant is known. If the name or present address of the defendant is unknown, the moving party must set forth facts showing diligent inquiry to ascertain it. A hearing on the motion is not required unless the court so directs.
    • Service of process may not be made under this subrule before entry of the court's order permitting it.

     

    Above quoted from:

    http://www.search-for-...

     

    Seems to me that your process server needs to get a little more creative.

    Because having confirmed that she lives there, I seriously doubt that the court will allow substitute service under the conditions you describe.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 04-01-2010 4:33 PM In reply to

    • mkc1982
      Consumer
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    • MI
    • Posts 3

    Re: Motion for alternate service questions.

    That is one of the options on the motion for alternate service...I just don't know what type of proof we need to get that motion passed.

  • 04-01-2010 5:37 PM In reply to

    • mkc1982
      Consumer
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    • Joined on 04-01-2010
    • MI
    • Posts 3

    Re: Motion for alternate service questions.

    Do you have any suggestions for "getting more creative"?

    I'm sure this defendant is going to dodge for as long as she can...I guess we just want permission to leave it with an over 18 party or tack it on the door...but I don't know what we need toget that permission.

  • 04-01-2010 6:28 PM In reply to

    Re: Motion for alternate service questions.

    mkc1982:
    Do you have any suggestions for "getting more creative"?

    If your process server doesn't know how to get more creative, I suggest you look for one who does.

    mkc1982:
    The court tells me I need "ample" proof to get a motion for alternate service.

    "Ample" is whatever you submit to the judge to convince him to allow alternate service. If he says yes it was ample. If he says no, it wasn't.

    As I wrote before, since you know where she lives, it's highly unlikely that the judge will allow other than personal service.

    Your process server is just going to have to sit on her house till she comes out, or follow her to work and use use the old special delivery ploy, or something else that works.

    mkc1982:
    I guess we just want permission to leave it with an over 18 party or tack it on the door...but I don't know what we need toget that permission.

    And your process server has no experience with defendants where alternate service was allowed?

    I think you need another process server.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
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