The Motion for Alternative Service: A Useful Tool in Maryland for Serving the Evasive Defendant

The Court of Appeals of Maryland requires in personam service of process on a defendant to initiate a civil action.  Unlike Maryland’s neighbor to the south, Virginia, which allows for posting and mailing of the complaint and supporting documentation at the defendant’s residence to effect process (known colloquially as “nail and mail”), Maryland generally requires service on the defendant himself or on someone living with that person of suitable age and discretion. 

The Maryland requirements for in personam service of process for District Court and Circuit Court are located in Md. Rule 3-121 (2017) and Md. Rule 2-121 (2017), respectively. These rules are virtually identical, so for the sake of clarity and brevity, I will be referring to the rules and their respective subparts by simply addressing the District Court rule. 

Rule 3-121(a) requires service “(1) by delivering to the person to be served a copy of the summons, complaint, and all other papers filed with it; (2) if the person to be served is an individual, by leaving a copy of the summons, complaint, and all other papers filed with it at the individual's dwelling house or usual place of abode with a resident of suitable age and discretion; or (3) by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting: ‘Restricted Delivery--show to whom, date, address of delivery.’”  Boiled down, Maryland requires service to the defendant himself, someone living at the defendant’s house over the age of 18, or by certified mail requiring essentially the same of the postman as of process servers under this Rule. 

Unfortunately, there are instances where defendants avoid service.  Some defendants have been served multiple times in the past so they become aware of the process and requirements, giving them the knowledge to avoid service.  Other defendants are simply wary of strangers at the front door and will not answer when the process server approaches.  This makes service of process under Rule 3-121(a) next to impossible.  This is why the Court of Appeals has included subparts (b) and (c) to Rule 3-121, allowing for alternative methods of service if ordered by the court. 

Evasion and Employment – Md. Rule 3-121(b) (2017)

Under Md. Rule 3-121(b), the plaintiff may move the court for an order allowing service by alternative means if the plaintiff can show the defendant was evading service.  Md. Rule 3-121(b) states as follows: 

(b) Evasion of Service. When proof is made by affidavit that a defendant has acted to evade service, the court may order that service be made by mailing a copy of the summons, complaint, and all other papers filed with it to the defendant at the defendant’s last known residence and delivering a copy of each to a person of suitable age and discretion at the place of business of the defendant.

Distinct from Rule 3-121(c), as explained below, Rule 3-121(b) requires proof from the process server via affidavit that the defendant tried to evade service for plaintiff to succeed on a motion for alternative service.  The plaintiff is not likely to succeed on his motion by submitting an affidavit sworn by the process server simply stating he stopped by the house and no one answered the door.  There must be proof, such as sworn testimony the person looked out the window and hid or promptly left the premises in his vehicle.  

If plaintiff’s process server can affirm via affidavit defendant evaded service, Rule 3-121(b) applies given defendant is employed and plaintiff is aware of defendant’s employment.  Because Rule 3-121(b) requires service on a co-worker or employer in addition to mailing the summons to defendant’s address, plaintiff cannot seek alternative service under subpart (b) if he cannot serve someone at defendant’s place of employment. 

If Rule 3-121(b) applies, plaintiff must file a motion for alternative service with an affidavit of evasion.  Inclusion of proof of defendant’s current address is preferable, such as a letter from the post office.  Because the summons is likely to expire by the time a motion for alternative service becomes necessary, it is also preferable to file a request for renewal simultaneously with the motion. 

If the Court grants the motion, plaintiff may make service by mailing a copy to defendant’s address and serving a copy to someone at defendant’s place of business.  

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No Employment and/or No Evasion – Md. Rule 3-121(c) (2017)

If there is no proof that defendant evaded service, but multiple attempts were made to serve the defendant, and/or Rule 3-121(b) is impracticable because defendant doesn’t work, or works from home, then Rule 3-121(b) is inapplicable and the plaintiff must proceed under Rule 3-121(c) to seek alternative service.  Even if the defendant did indeed evade service, but the plaintiff has no proof of employment for the defendant, the plaintiff must proceed under Rule 3-121(c). Md. Rule 3-121(c) states:

(c) By Order of Court. When proof is made by affidavit that good faith efforts to serve the defendant pursuant to section (a) of this Rule have not succeeded and that service pursuant to section (b) of this Rule is inapplicable or impracticable, the court may order any other means of service that it deems appropriate in the circumstances and reasonably calculated to give actual notice.

If Rule 3-121(c) applies, plaintiff must file a motion for alternative service with an affidavit detailing good faith efforts to serve the defendant.  Because subpart (c) doesn’t specify a specific method of alternative service, plaintiff may request a method in the motion.  Plaintiffs have been successful moving for service by posting of the complaint on defendant’s front door while simultaneously mailing the complaint to defendant’s residence (Virginia’s “nail and mail,” as described above).    

As recommended above, inclusion of proof of defendant’s current address is preferable, such as a letter from the post office; and, because the summons is likely to expire by the time a motion for alternative service becomes necessary, it is also preferable to file a request for renewal of the summons simultaneously with the motion. 

If the court grants the motion, plaintiff can make service by whatever method requested in the motion.  

When These Rules Do Not Apply

If the process server cannot offer evidence that defendant evaded service, but plaintiff can confirm defendant’s employment, neither Rule 3-121(b) nor Rule 3-121(c) applies.  Essentially, the courts are saying: “If the defendant is not evading service but is never home, and the plaintiff knows where the defendant is employed, then the plaintiff can serve the defendant without alternative service by serving the defendant at a different time of day or at defendant’s place of employment.”  

Conclusion

The motion for alternative service under Md. Rules 3-121 and 2-121 is a helpful tool for practitioners when dealing with an evasive defendant.  Although Rule 3-121(b) provides a helpful alternative, Rule 3-121(c) applies in more situations and allows the plaintiff to choose a type of service if approved by the judge.  Judges are likely to approve the “nail and mail” method as it is acceptable in other states and is likely to provide notice.  A well-drafted motion with detailed documentation from plaintiff’s process servers is likely to result in the court granting the motion and plaintiff effecting service on the defendant.