Summons via Certified Mail Unsuccessful Twice
The court ordered US Marshals to serve summons and complaint in pro se civil case in April 2004 and August 2004. Both times Marshals sent summons via certified mail receipt. But, first time all Defendants did not sign and in Remarks section ''Returned -- Unknown.'' Second time, three notices came back without signatures, blank remarks and the fourth in Remarks was ''Unknown - Returned 9/20/2004. Upon suggestion of Marshal, am sending Court a Motion to re-issue Summons: Personal Service. It is common knowledge that Defendants are aware of lawsuit and are stonewalling because they cannot defend the charges against them. What can you do to assist me: If Defendants evade or refuse the direct service of process by Marshal, what can I do? If one Defendant has been transferred to another duty station (proceding to locate his address through Post Locator), do I wait for new address to re-file motion? If all reaspnable efforts fail, should I seek summary judgement for total amount of damages listed in my complaint from each Defendant?
2 Answers from Attorneys
Re: Summons via Certified Mail Unsuccessful Twice
You don't need to use marshals for service in an ordinary civil case. You can have the reissued summons returned to you and then hire a private process server to accomplish service. They generally do a much better job than the marshal, but of course you'll pay somewhat more for service. However, if you obtain a judgment against the defendants, the court will award you costs such as filing fees and service fees. The private process servers know the rules and how to properly effect service, and they will prepare a service affidavit and file it for you as well. You don't usually need to file a motion to get service reissued; you just take it to the clerk's office, and they will reissue process.
You can't get a judgment against any defendant who hasn't been properly served, but once you achieve service, you can get a judgment by default (you may have to put on some evidence) if they don't file a timely response.
Re: Summons via Certified Mail Unsuccessful Twice
I would say at this point, having tried your best to do-it-yourself, the first thing you need to do is to retain an attorney to help you with your case. Please contact me, see below, if you wish to discuss retaining my services.
A Defendant in a civil case is entitled to "due process of law", which includes notice and an opportunity to be heard. "Notice" of the lawsuit commences with proper service of the lawsuit, summons, and any necessary supporting documents (i.e. Affidavits if applicable, etc.) If you don't get proper service on the Defendant, you may not be able to get a judgment, and even if you do, it may be deemed invalid at some later time. The fact that the Defendant supposedly knows you are suing him does not eliminate the need to properly serve the Defendant. Since you refer to U.S. marshalls, I must assume this case has been filed in federal court. You must serve the defendants according to the Federal Rules of Civil Procedure, which are available on the Internet as well as any law library.
Usually, service of civil summonses, while a part of the U.S. marshall's functions, are about as low of a priority as they have. They have other duties to worry about--catching fugitives, providing security in the courthouses, etc.
Unless there is something about this case you have not divulged or your judge has ordered otherwise, the federal rules permit service by using a private process server. A private process server will attempt to serve the defendants personally, not just certified mail efforts. Of course you have to pay the private process server. Sending certified mail to an individual is usually not a very good way to serve process as there is no obligation to accept certified mail, and the failure to accept certified mail does not in itself establish evasion of service. Because even the marshalls have not attempted personal service, you certainly will not be considered to have attempted all "reasonable efforts" at service on these Defendants. If you do not have a valid address for service, your process server should be able to perform a skip-trace using data such as date of birth or SSN to locate a more recent address (for an additional fee of course). They can also do surveillance but of course this will cost you more money.
However, your case has a very big "red flag", and that is your reference to "duty stations". If this means the defendants are active duty military, they are probably covered by the Soldiers and Sailors Civil Relief Act, which means that unless they consent to be sued, you will not be able to obtain a valid judgment until after they are no longer protected by that particular statute.
You really need to hire an attorney to do a complete review of your case in order to advise you as to how you should proceed.