People move, don't leave a forwarding address, disconnect their phones, fall off the grid. Especially people who know they're about to sued and don't want to be found.
In Washington, defendants have a legal duty not to evade service, but they are not obligated to assist a process server or cooperate with you to effect service.
What does it mean to evade service?
So what's the difference between "evading service" and just "not cooperating?"
Consider this example: Process server Jane knocks on Defendant John's door. John is home but doesn't answer. Evasion?
No, the courts have said. Failure to answer the door does not constitute evasion of service. You don't have to answer the door when a door-to-door salesmen or a politician comes knocking, so you don't have to answer the door when the process server comes knocking.
Second example: Process server Jane sees Defendant John on the street and hands him the summons and complaint. John throws the documents on the ground and runs away. Unlike not answering the door, here John is clearly evading service.
A defendant has a duty to accept service when properly "tendered," as the courts put it.
How do I prove that the defendant is avoiding service?
Under Washington law, before you can ask the Court to serve the defendant by mail, you are required to make “honest and reasonable efforts” to find the defendant.
So what are "honest and reasonable efforts?"
You have to follow-up on all information that you have and all information that is "reasonably available" to you. This means that you have to reach out to any third-parties who may know where the defendant is.
In a nutshell: did you try hard enough to find the defendant? That's what the courts will ask when the defendant later challenges service of process in court.
Based on prior court rulings, I recommend you take all of—or at least most of—the following steps if you're having difficulty locating the defendant:
- Search social security records, voter registration rolls, traffic records, criminal records
- Search online for the defendant's contact information (phone number, address, email). This obviously includes social media (Facebook, LinkedIn, Twitter, Instagram)
- Is the defendant a student? Call the school and ask about the defendant's location
- If a car accident case, contact the defendant's insurance company. Did police come on scene? Get a copy of the police report and call the listed phone number? Were there passengers in the defendant's car? Call them also. Was the defendant driving a rental car? Get in touch with the rental car company
- Call the post office and ask and try to get the defendant's last known address
I've tried everything and I still can't locate the defendant. What now?
If you still can't locate the defendant, you can ask the Court for permission to serve the defendant by mail. In other words, you are asking the Court to relieve you from using personal service or substitute service.
To do this, you have to file a motion with the Court and include an affidavit (a signed declaration under penalty of perjury) detailing what efforts you made to try to find the defendant.
Your affidavit is crucial. If you want to win this motion, you need to make your affidavit as detailed as possible.
If the Court grants your motion, you now have to follow the steps laid out CR 4(d)(4), a Washington court rule.
- You must mail one copy of the summons and complaint by ordinary first-class mail to the defendant's last known address.
- You must mail a second copy of the summons and complaint certified mail, return receipt requested, to the defendant's last known address.
- Each letter list the return address of the sender on the envelope--this is your address, not the address of, say, the process server, even if the process server mails the letter.
If you serve the defendant by mail, the defendant has 90 days from the date of mailing to answer the complaint. Note that the defendant has more far time to respond when served by mail than with personal service (90 days vs. 20 days).
