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Attorney 1
Attorney 1, Attorney
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Experience:  Knowledgeable and Experienced Attorney.
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A Superior Court Judge is willing to grant me alternative service

Resolved Question:

A Superior Court Judge is willing to grant me alternative service as my process server has unsuccessfully tried to serve the defendant many times. However, I was told to state how I would like the alternative service to be approved (i.e. posting on his front door and mailing a copy via certified mail or via publication). Is publication most likely to allow me a default judgment? I did it once with a small claims action and it cost about $200 to publish. That defendant didn't challenge my default judgment. If this one challenges my default judgment, am I more likely to have it vacated if I chose service via publication? The defendant already told a friend of mine that he's seen my complaint. I'm thinking: just get default judgment and if he files a motion to vacate it when I attempt to collect upon it then I can bring my friend in as a witness that the Defendant was already aware of the action. Please let me know your thoughts. Thanks.
Submitted: 2 years ago.
Category: Legal
Expert:  Attorney 1 replied 2 years ago.

Attorney 1 :

Hello, and welcome to JustAnswer! I am preparing your response. Please remain online for a few moments, so you can get your answer right away.

Customer:

OK, thanks.

Attorney 1 :

Publication is the standard method in these situations. Service by publication requires a court order which can be obtained upon filing a declaration outlining your efforts to date, and requesting the service by publication. Effectuating service by publication requires paying a small fee to list the lawsuit in an approved legal journal and waiting the approprate number of days/publishings. You may then move for a default judgment, which will trigger a prove up hearing, at which you will be required to prove your damages to the court. It sounds as though you are already familiar with the process.

Customer:

Yes. I just fear paying all of that money for service via publication and then the defendant coming back and attempting to vacate my judgment due to my serving him via publication.

Attorney 1 :

If a defendant challenges a default judgment, and is ablde to show good cause as to why the default should be set aside in favor of actual litigation, the court will likely grant the motion. This is the case regardless of the method of service. If the judge orders service by publication, the defendant cannot quash service or vacate the default on that basis, as the judge has already approved the method of service.

Attorney 1 :

He/she will need something more.

Customer:

Ok, how do I know which paper to publish it in? Last time I did it was in a different state.

Attorney 1 :

Hold on a moment and I will check for you. In what county does the defendant reside?

Customer:

Maricopa

Attorney 1 :

Here are the specific instructions from the Maricopa County Court:

Attorney 1 :

It didn't copy well, so here's the link:

Attorney 1 :

http://clerkofcourt.maricopa.gov/faxondemand/608.pdf

Attorney 1 :

It allows for pulication in any paper of general circulation, so pick a popular one.

Attorney 1 :

You can call the paper, tell them what you need, and you will be directed to the appropriate department.

Attorney 1 :

If you need more information, just let me know.


Best of luck!
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.

Customer:

Would I just publish a copy of the summons then?

Attorney 1 :

You will likely need to send a copy of the summons and maybe the complaint to the paper. The department handling the service by publication will tell you what they require. However, the actual summons will not be published. The only thing that will appear is a small notice advising the defendant of enough details that he will be able to obtain the information necessary to defend him/her self.

Customer:

I'll submit something similar to this.

Customer:

So, if my process server tried him 3 x at home and once at work, is that sufficient in your mind for the process server to be claiming that he was avoiding service?

Customer:

She tried October 8th, 9th and 10th.

Customer:

Shouldn't she have tried like October 8th, 13th and 21st or something? Varying days/times/locations?

Customer:

(She tried twice on the 9th, once at 7:40am and once at 3:40pm)

Attorney 1 :

Just make sure you contact the paper and make sure they do service by publication. Give the information to the proper person handling these matters. A regular classified listing will not suffice. You cannot choose the wording. This is done very specifically by the paper. The proof of service detailing the service to date, will be just fine. All that is required, are reasonable attempts, not extraordinary measures.

Attorney 1 :

Remember to attach the proof of service to the declaration you file with the court, along with your request for alternative service.

Customer:

Are you an AZ attorney, by any chance?

Attorney 1 :

If the judge has already suggested you to t his, he will likely grant the motion.

Attorney 1 :

I'm in CA, sorry.

Customer:

That's OK, as long as you aren't NY or MA or something

Customer:

lol

Attorney 1 :

I'd be asleep if I was on the east coast.

Customer:

Yes, the judge suggested that I write in PUBLICATION. I had written the order and left a blank for him to fill in.

Customer:

Some attorneys never sleep lol

Customer:

OK, I will try that and see how it goes. Thank you.

Attorney 1 :

I am well aware of that. It is a fact, not a myth.

Customer:

lol

Attorney 1 :

You are very welcome. Good luck!

Customer:

Thanks!

Attorney 1 :

My pleasure. If you are satisfied with my answer, please remember to click "ACCEPT."

Attorney 1, Attorney
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