How Much Is Enough? Attempts at Personal Service
In Loppnow v. Bielik, the court of appeals reversed the decision of Waukesha County Circuit Court Judge Michael Bohren that the plaintiff hadn’t exercised reasonable diligence in attempting to personally serve the defendant before resorting to service by publication. The court of appeals explained its reasoning:
The guiding principle in these cases is that, when pursuing any leads or information reasonably calculated to make personal service possible, the plaintiff must not stop short of pursuing a viable lead–or in other words, stop short “of the place where if [the diligence] were continued might reasonably be expected to uncover an address of the person on whom service is sought.” Haselow, 212 Wis. 2d at 589. In West, the plaintiff stopped short of pursuing information he had about the defendant’s whereabouts, and also stopped short of making an inquiry to either his relatives or defendant’s relatives who were likely to know the defendant’s whereabouts. West, 82 Wis. 2d at 164-65. In Haselow, the plaintiff stopped short of attempting to locate the defendant in Hawaii despite information from the defendant’s father that he was living there. Here, there is simply no evidence that Loppnow “stopped short” in his pursuit of Bielik’s address, in Orlando or elsewhere.
If you’re like me, you’re wondering what good this definition of “reasonable diligence” is. How can you ever tell when you’re at a place where if diligence were continued, you might find the address of the person you’re looking for? Don’t you only know that if you’ve taken the step and it either succeeds or it doesn’t? And if it doesn’t, how can you know whether the next thing you try won’t do the trick? The next private investigator you hire may be the one who gets the information.
This isn’t the first time a court has given us the “I’ll know it when I see it” standard, though. I think the court in this case was influenced by defense counsel’s close personal relationship with his client’s family and his related refusal to provide any information permitting service.
The court’s analysis (although short) of the adequacy of service by publication is also instructive. While it doesn’t provide a wealth of guidance, this case should figure prominently in your next sufficiency-of-service argument.
