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Ruffino v. Lokosky - 7/12/2018

The Arizona Court of Appeals Division One holds that a plaintiff must first attempt to provide notice of a suit via modern means of communication, such as by email, by telephone, or through social media, before seeking to serve process by publication under Rule 4.1(l) of the Arizona Rules of Civil Procedure.

Plaintiff sued the author of a series of online posts, alleging various tort claims.  Plaintiff attempted to serve the author at three different addresses.  Plaintiff’s process server unsuccessfully attempted service once at each address.  Plaintiff sought leave from the superior court to pursue alternative service or service by publication.  The superior court denied Plaintiff’s request, observing that Plaintiff had made only one service attempt at each address.  After one more attempt at one of the three addresses, Plaintiff served the author by publication.  When the author learned of the suit after control of her website was transferred, she appeared and moved to set aside or vacate the default judgment.  After briefing, limited discovery, and an evidentiary hearing, the superior court vacated the default judgment.  Plaintiff timely appealed.

The Court of Appeals affirmed.  To be entitled to serve process by publication under Rule 4.1(l), a plaintiff is first required to show that he was unable to determine the author’s address or that the author was intentionally evading service.  Plaintiff, however, had reason to believe that the author resided at one of the addresses in particular and had alternative means to contact the author, including by email, by telephone, or through social media.  Yet, because he did not pursue these “conventional ways” to contact the author, the Court held that the plaintiff had not been reasonably diligent in attempting to contact her.  Finally, given the availability of “modern methods of communication” available to the plaintiff, the Court held that the plaintiff could not establish that service by publication was the best means practicable under the circumstances to provide the author with notice of the suit.

Judge McMurdie authored the opinion; Judges Johnsen and Weinzweig concurred.

Posted by:  Phillip W. Londen

Posted On: 7/23/2018