EP 245 How Do I Serve Someone I Cannot Find? With Attorney Dannielle Simms of SimmsLawGroup.com

The service of process procedure, that is serving court papers on a litigant, is not always easy. In this episode, Texas Attorney Dannielle Simms of Simmslawgroup.com joined Mac Pierre-Louis of Macpierrelouis.com to discuss the topic of serving someone who cannot be found. The dialog discusses the importance of due process and the role of attorneys ad litem in ensuring proper notice and justice in legal proceedings, despite the extra costs involved. They also discuss the importance of lawyers in navigating legal issues, highlighting the challenges of locating individuals and emphasizing the value of seeking legal assistance for when needing service by alternative means. Read full transcript below.

Transcipt

0:00 How do I Serve Someone I Cannot Find? That is our topic for today.

0:06 Welcome to the Lawyers and Mediators International Show and Podcast, where we discuss law and conflict resolution topics to educate both professionals and everyday people, catch regular episodes on

0:18 YouTube,

0:19 and anywhere you get your podcast.

0:20 Just remember, nothing in these episodes constitutes legal advice.

0:24 So be sure to talk to a lawyer as cases are fact dependent.

0:33 Hey everyone, this is attorney Mac Pierre-Louis, lawyer, mediator, arbitrator.

0:36 Working throughout Florida in Texas.

0:38 Welcome back to the LMI podcast where we talk about law and conflict resolution topics.

0:42 All right, guys.

0:43 Today we have Dannielle Simms back, attorney and mediator, actually.

0:50 Danielle, thank you again for revisiting us, and you’ve been speaking on a series now on multiple legal topics.

0:58 Today is no different.

0:59 Today we’re going to be talking about service. What is it, and how can we serve people who we cannot find.

1:07 And we discussed this briefly, Danielle, but before we start, tell people just 10 seconds about yourself and where you’re located.

1:14 How can they contact you.

1:16 Hi, everybody.

1:16 I’m happy to be back again.

1:18 As usual, I enjoy talking to everybody about these topics, especially since educating the public is part of what we do, right?

1:26 Because people deserve to know exactly how to do what they need to do, or at least how to ask questions.

1:32 I have been practicing in Harris County, Fort Bend County, and all the surrounding counties in Texas for the last, or at least since 2013, good gosh.

1:42 And I practice family law exclusively.

1:45 I also do estate planning and probate.

1:47 So guys, those things go part and parcel.

1:49 So remember, as you are deciding how to divide assets, you need to also be planning for the future and your children’s future or your own future.

1:58 So it’s a little bit about myself; and again, I enjoy answering questions and educating everybody.

2:04 Exactly.

2:04 So this is where you come to get educated on the law.

2:07 Again, this is not legal advice.

2:09 So make sure you talk to a lawyer because every case is fact dependent.

2:13 All right.

2:14 So Danielle, when we talk about service, people might imagine, OK, I file a lawsuit.

2:19 Maybe it’s a divorce case.

2:20 Maybe it’s a custody battle lawsuit.

2:23 Maybe it’s a civil action over car repair, whatever it might be, every time you file a lawsuit, anywhere in the world, you gotta give the other side, your opposition, some kind of service or

2:37 notice.

2:37 And we might have seen a movie where a process server is chasing somebody down and saying, Ah, you’ve been served and giving them the documents.

2:45 So first of all, that’s TV, but how is that accurate in real life?

2:51 Is that’s something that’s necessary in real life?

2:52 Tell us broadly about

2:55 service.

2:55 Okay, so if you guys have been watching this series with me, you know that my favorite answer is always it depends, ’cause it really does.

3:03 It really depends on the facts, which is why, like you said, this is not necessarily legal advice, so much it’s a kind of a guideline of how things go.

3:10 Ultimately, at the end of the day, the whole concept of you got served and chasing someone down and throwing papers at them, can that be appropriate?

3:18 Yeah, could it not be appropriate?

3:20 Yeah, depending on the situation.

3:22 What everyone needs to understand is that service is really about notice. We have the right to know when a lawsuit is filed against us.

3:31 Even if it’s a divorce, if it’s an eviction, if it’s just all kinds of things like that, you have a right to know what’s being filed against you, you have a right to know the facts that are being

3:41 pled, you have a right to know what’s being requested of you.

3:44 That’s why service is so important, because when we’re talking about service, that can be a myriad of things, but generally the public is thinking of how do I start this lawsuit?

3:55 How do I, and I’m gonna speak in the context of divorce, how do I get this divorce started?

3:59 Because what happens to me a lot, and I’m sure this happens to you, people will come through my door and go, hey, I haven’t seen my husband or my wife in 15 plus years, I just wanna get divorced.

4:09 A lot of times they’re wanting to move on with a new spouse, and move on with that individual that they’ve created an entire life with, sometimes children with, but in order to marry that person,

4:20 they’ve got to be divorced.

4:22 And sometimes you’ll see situations where those individuals want to leave property to a new person or leave property to other children.

4:31 And here we are in a situation where it turns out that person they married 15 years ago in Vegas and they were only together for 30 minutes.

4:38 And then they went on with their lives, they’re still married to that person.

4:41 And so what I see a lot of is how do I find them?

4:45 And in fact, I have a case where it’s not even just a divorce, it’s a custody lawsuit.

4:49 I’ve got a person who wants to go for

4:53 to adopt some children, but in order to adopt those children, gotta get the parents served.

4:57 And so how do we do that?

4:58 Those are the kind of things that we’re looking at and in addition to service, how do we keep that person notified about what’s going on as the lawsuit is pending.

5:06 Yeah, so in this example you’re giving where you’re trying to find someone you haven’t seen in many, many years, there are remedies for that though, right?

5:13 So now let’s talk about the different types of service.

5:16 Could you use the phrase when you’re, I guess, initiating a case that’s the first kind of process you gotta go through, right?

5:24 That service to initiate the case.

5:27 However, there might be different types of service.

5:30 some of the different types of service, let’s talk about them.

5:32 So obviously you have personal service, which is I know where you are, I’m handing you the citation, whatever you’re being served with.

5:39 And by I, I mean a process server or a constable.

5:43 That’s what service is for personal service.

5:46 Then you can have things such as substituted service, alternate service or publication, which a lot of those things are part and parcel with each other, but what you’ll see is service via the

5:55 newspaper, right?

5:56 Or sometimes you’ll see service at a location to someone that’s 16 or older, depending on what’s going on with the facts.

6:04 I’ve had situations where I’ve had individuals serve via Facebook after proving that that person was active on social media and that I have a reason to believe that they will be able to get notice

6:15 through that social media.

6:17 I’ve even had an individual served via text message.

6:20 And just a little background on that, the reason I was able to do that was because I was able to establish for the court that their number was 555-555, right?

6:29 And that they were active on that phone because that individual was still texting with their spouse and actually taunting their spouse but avoiding the process server.

6:37 And so what I ended up doing was filing a motion for alternate service and saying they can be reached at 555-5555 and I provided copies of the text message for the court so I could show this is that

6:49 person’s phone number.

6:51 They are active on this phone and so we need to be able to serve them that way. So what are some ways you can persuade the court to justify allowing you to serve people by alternative service if you

7:03 cannot find someone?

7:04 Okay so as you know personal service is king right and so part of the way that a court is going to allow you to avoid personally serving somebody is if you are able to show that you have made every

7:16 diligent effort in actually effectuating personal service. In the example I gave with the text messages, that individual was actually avoiding service.

7:24 We were very clear in showing that we had the individual’s home address.

7:28 We knew the individual still resided there because these two individuals had not been apart very long.

7:32 I mean, it had been less than 30 days.

7:35 When you are in situations where you’ve been apart a lot longer and you legitimately cannot find where that person is or you don’t know where they are, you need to be able to provide the last known

7:45 address of that individual, provide the last known phone number.

7:48 If you’re able to provide family members that you know, been in contact with that individual, you may want to consider asking a court to serve those family members.

7:57 The other thing that you need to look at, which is huge, is is that person in the military?

8:03 Are they on active duty?

8:04 Have they been sent somewhere because of the military?

8:08 What you’re looking at is what’s called the Service Member Civil Relief Act.

8:13 I’m sorry, that’s a whole mouthful, but it’s SCRA or something along those lines. You can search for them online if you’ve got their date of birth, if you have their social, if you have their

8:22 full name.

8:24 You can search for them and show a court, hey, they are not a member of the military or they are, right?

8:29 And then that’s when you know, hey, you’re you’re gonna you’re probably gonna have a problem seeking litigation against this person while they are actively engaged in the military or deployed. The

8:40 other thing that a lot of people need to look at too and I think we we’ve kind of touched on this but social media how how active are they on social media?

8:49 Do they have other individuals in the home?

8:52 They’re 16 years or older because sometimes what you’ll have is a judge who allows you to leave citation with someone at the home that is 16 years or older.

9:00 You also have what’s called Service by Publication, Which is serving through the newspaper essentially and so the idea is that that person at some point will look at the newspaper. One of the other

9:11 things that a lot of individuals need to know is sometimes a lot of times when you’re in situations where you can’t locate the other person, once that alternate service or publication particularly is

9:22 ordered granted and completed and attorney-ad-litem will be appointed.

9:26 So, well, let’s get into that example.

9:30 And the most common reason you might need to go through the publication service you just mentioned, and then the ad litem example you’re gonna talk about is when you cannot find someone after a very,

9:39 very long time.

9:41 And so, give us some of the reasons why the court has to go through all these extra steps, because this can get kind of costly as well.

9:49 So, talk to us about publication ad litems. Well, again, the big crux of this whole thing is that, guys, notice is a big deal.

9:60 In America, we are very, very, very diligent about making sure that people are not getting

10:10 in situations that they had no idea about legally without proper notice.

10:15 It’s due process right, it’s fundamental.

10:21 Exactly, there you go.

10:21 This is why, there you go.

10:21 Thank you for picking that up for me but it’s a due process issue.

10:22 And so, we have to make sure that everyone is getting their due process, is getting their justice.

10:28 Ultimately, at the end of the day, when you have attorneys ad litem, who are appointed, that is an extra cost.

10:34 But what that individual is designed to do is, 1, make sure that you were diligent in your efforts to locate the person.

10:40 And their job is to also do their own independent research to see if they can locate the individual.

10:46 Sometimes what you’ll have is situations where the person has left the country. Yes, I’ve seen that.

10:49 And so, right.

10:51 And so you’ll have ad litems who are able to find them, who are able to potentially get in contact with the individual themselves, get in contact with consulates, things of that nature, to make

10:60 sure that that person is not only served, but the individual serving them is covered because, hey, I’ve gone through the steps, I have found this person, they know about the lawsuit, because

11:10 what you don’t ever want to have is seeking a default judgment against someone.

11:14 And a default judgment is where the person has not necessarily participate in the litigation or they don’t show up to final trial.

11:21 And when you get that default, that individual shows up and is able to set aside the default for something as simple as not having notice, due process, being able to say to the court, hey, I

11:32 didn’t know anything about this.

11:34 Because a lot of times what you’ll find is for the sake of protecting everyone, a

11:39 court is more likely to set aside a default judgment just to make sure that everyone is covered.

11:45 Yeah, and so this is kind of a big deal. Imagine going through all the hard work of going, trying to serve somebody you cannot find.

11:56 Maybe not doing things as clean as it should be, not being successful and find a person, but getting them some alternative means.

12:04 And then you finally get a judgment, maybe by default.

12:06 But then all of that hard work, a few years later, is just tossed by the court because somebody appeals it.

12:13 You know, judges are gonna have no problems just sitting aside a judgment and saying, you know what, you got to start over. why?

12:20 because this whole due process thing is fundamental to the rule of law.

12:23 We don’t want people just getting screwed over by somebody else doing stuff behind their back.

12:29 So we have to have a system that allows people to be noticed.

12:32 And so this is why when people have headaches, they come to their lawyers trying to be like, hey, I can’t find this person.

12:38 Do I got to stay that way forever?

12:40 Like, no, we have methods, but you have to, unfortunately, you’re going to have to go through the entire process.

12:47 And this is why it’s worth getting a good lawyer who’s going to be able to investigate all your options when it comes to notice effectively and getting it done.

12:55 But yeah, continue, Dannielle.

12:57 Tell us the person who hasn’t found somebody in 15 years, is there a light at the end of the tunnel?

13:02 Can they finally get this thing done and have an order that can stand the time?

13:07 Absolutely.

13:07 There is light at the end of the tunnel, but one of the things that I always tell clients, and this is in any area of law, always be upfront with your lawyer. Do the best you can provide the.

13:20 his history for that person’s location because there is light at the end of the tunnel, it just has to be done correctly.

13:26 Now, you also have to be patient because sometimes it does take time, especially if you’re trying to be diligent in trying to make sure that that order, that final order, that judgment, whatever

13:36 it is, stands the test of time and can really stand up to a Motion to Set Aside.

13:41 Now, I want to make sure that everyone understands that the idea of setting aside that default, the idea of setting aside that judgment isn’t necessarily the most horrible thing because sometimes

13:53 when you do that and you allow the other person to participate in the litigation, if they fall off again but they’ve made an appearance or if they have stuff that you are not aware of or if there’s

14:05 more nuances that you are not aware of or there’s assets that you need to protect or children you need to protect, it’s not a bad thing to for judges to say, hey, that default was based on them not

14:15 being around.

14:16 let’s make sure we have an idea of everything that’s going on, but also let’s force them since they’ve decided to set aside the default.

14:22 Let’s force them to participate in the litigation.

14:25 Because sometimes what you’ll have is individuals who will avoid service or who will, you know – Evade and just run.

14:31 Evade and just run, but they’ll come back to set aside the default.

14:35 Yeah.

14:35 And sometimes guys, that’s just a tactic of making the other person miserable.

14:41 But at the end of the day, that’s why it’s so important to make sure that everything is covered That’s why ad litems are necessary.

14:47 And just so we’re clear, ad items are attorneys that are appointed by the court.

14:52 And you can have an add item in several different contexts, but when it comes down to service, it’s an ad litem that is usually appointed after publication.

14:60 Correct.

15:01 And that person, part of their job is to make sure that, like I said, diligent efforts were made and they do their own independent research.

15:08 Yes. And so there are instances where you have to serve someone personally, where these other options of alternative service, substitution service, publication service are just not available.

15:18 The one that comes to mind, of course, enforcement case, a contempt case where you’re trying to lock somebody up, you’re trying to punish somebody because they didn’t do something.

15:25 The court said, well, that gets pretty serious.

15:28 And when we’re talking about due process, we’re talking about due process on steroids now, right?

15:32 Because if somebody risks losing life or limb, they have a right to be noticed in such an effective way, the courts don’t play around with this. So Dannielle talk to us about service on an

15:44 enforcement case.

15:46 If you can’t find that individual, if you don’t know where that individual is, you’re going to, it is going to be darn near impossible.

15:56 If not impossible, although my favorite word is, it depends, it’s gonna be darn near impossible to seek an enforcement action against that person, especially since most of the time, you are

16:06 seeking some sort of jail time.

16:07 And so therefore, if you are truly serious enforcement or if you are seeking something to that level, you really need to make sure that you know where that individual is, because an ad litem is not

16:18 going to be able to help you in that context.

16:19 Exactly.

16:20 And so the enforcement we typically see are where you’re trying to enforce child support payments, not being paid for example, or when you’re trying to enforce possession.

16:29 Right.

16:29 You want to see your kid, the other parent won’t let you.

16:32 And so sometimes your only remedy is to seek an enforcement.

16:35 But in those instances, you have to find the person. So the question today is, how do I serve someone I cannot find?

16:41 Well, it becomes really, really hard when it’s an enforcement case.

16:44 And so again, you got to get with an attorney.

16:47 And they may start thinking outside the box of ways it can help you try to find the person, maybe private-i’s, different tracings of individuals, stuff that’s basically out of court solutions, but

17:00 with the goal of trying to find the person.

17:03 And you can be your own detective in a way, right?

17:05 Not breaking any laws but you can try to hunt the person down.

17:10 you know, and just Dog the Bounty Hunter kind of thing.

17:13 Right, and I need everyone to keep in mind because I think as a lawyer, this is something that I run into a lot.

17:19 These efforts, the ad items, all of this costs money, okay?

17:24 And I need everyone to truly understand that if you think you’re going in for a divorce that I’ll say is uncontested and you think it’s simple, it’s not simple when you cannot find the other

17:34 individual.

17:35 It’s not as simple as you think.

17:37 The division of the assets may be simple, especially since a lot of times people come in and they tell me I want to keep what I have, I want that individual to keep what they have, I’ll pay my

17:45 debts, you pay your debts, we don’t have children together, we didn’t own a

17:50 home together.

17:52 That is what comes up, but ultimately at the end of the day, there is cost associated with locating that individual.

17:58 And so everyone needs to be aware of that.

18:02 And I think a lot of individuals don’t understand that litigation, even when it’s small, has a cost.

18:09 which is why it’s important for you to not wait 15 years after you and the individual have essentially separated to then seek that divorce, seek it immediately.

18:21 Or if you’re going after a custody suit or if you are in a situation where you will need future litigation, do it sooner rather than later so you don’t lose that individual.

18:32 For example, when I have cases where the person might be homeless,

18:37 that in and of itself is just, it creates such a dilemma and you end up in situations where you have litigation that can be going on for a year simply because we’re trying to find somebody or if

18:49 they’ve left the state or if you have a parent who doesn’t know who the other parent is and you have to do all kinds of searches before you can even get an individual served, that stuff happens and

18:59 then I have to look at the client and go, hey, you didn’t tell me from the beginning that this person was absent, so.

19:06 Yeah, I would say my most common.

19:08 The most common call I get when, where service is an issue is from a parent who went to the attorney general child support office and the attorney general, they don’t work for you.

19:19 They’re not your own lawyer.

19:20 So they can only go so far to try to find somebody.

19:23 And after one case, after multiple attempts to serve somebody and multiple cases were dismissed for want of prosecution by the court, at the end of the day, the person came to me and then we ended

19:35 up finding the other parent and we ended up moving the case forward.

19:39 But that just goes to show that even the AG, you know, the authority in Texas when it comes to the law, sometimes can’t find someone because people run and hide.

19:48 And so there’s always hope out there to go with a lawyer and try to seek alternative methods of, you know, service.

19:55 So right then, you know, times up, 20 minutes goes back really fast when we’re having fun, right, as they say.

20:00 So why don’t you close us out, best way people can, you know, touch base with you again?

20:05 The best way that you can get a hold of me is by looking up my website, which is

20:11 SimmsLawGroup.com.

20:11 My office number is 713-532-0100.

20:15 And you can make an appointment to talk to me and have a consult with me.

20:19 All right, guys, until next time, thanks so much for checking us out and see you back on the next recording of LMIPodcast, and check us out on LMIPodcast.com. Take care.

20:30 Bye.