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Unable to serve defendant, what do I ask judge to do?

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topaz99

Junior Member
Colorado Small Claims case

I have a small claims case in Colorado and after 3 attempts to serve the defendant I was not successful. I want to ask the judge for an alternate method of serving or to hear the case without. Is this the correct strategy/procedure or is there any other option?

Background - I am landlord and only had the defendant's work address to serve. Used 2 3rd party servers and neither was successful. One made numerous attempts and made numerous phone calls/voicemails and documented in affidavit. 3rd attempt was through the court via certified mail, also unsuccessful. Skip trace did not reveal current address.

I have continued the case 3 times now and I had previously contacted one of the admin's in the civil division and he told me that I had made a reasonable effort and I should just tell the judge and he may just hear the case without service. I thought this was incorrect and the last process server told me to request judge to do public notice for service on the date of the trial which will postpone the date another 2 weeks or so.

Any other suggestions? I have all my evidence and documents ready to go for the trial but just want to get a judgement. Follow-up question - if I get a default judgement against defendant, I have his employer, bank, and ssn info, can i get court to make him fill out interrogatories if he is not present, or can judge issue a summons or court order to make him do it so i can garnish wages?
 


sandyclaus

Senior Member
Colorado Small Claims case

I have a small claims case in Colorado and after 3 attempts to serve the defendant I was not successful. I want to ask the judge for an alternate method of serving or to hear the case without. Is this the correct strategy/procedure or is there any other option?

Background - I am landlord and only had the defendant's work address to serve. Used 2 3rd party servers and neither was successful. One made numerous attempts and made numerous phone calls/voicemails and documented in affidavit. 3rd attempt was through the court via certified mail, also unsuccessful. Skip trace did not reveal current address.

I have continued the case 3 times now and I had previously contacted one of the admin's in the civil division and he told me that I had made a reasonable effort and I should just tell the judge and he may just hear the case without service. I thought this was incorrect and the last process server told me to request judge to do public notice for service on the date of the trial which will postpone the date another 2 weeks or so.

Any other suggestions? I have all my evidence and documents ready to go for the trial but just want to get a judgement. Follow-up question - if I get a default judgement against defendant, I have his employer, bank, and ssn info, can i get court to make him fill out interrogatories if he is not present, or can judge issue a summons or court order to make him do it so i can garnish wages?
You're not going to be able to even get the court to hear your case unless you can provide a proof of service that says you managed to serve your defendant. The defendant is entitled to receive service no less than 15 days prior to the hearing date. The options available are personal service, service by sheriff or process server, or service by certified mail. The court isn't going to accept any other service method not reasonably calculated to provide notice to your defendant.

Have you tried address correction service through the post office to try to get the defendant's current home address? Or you may wish to use a more creative process server company that is more diligent. Otherwise, if you can't serve them, you aren't going to be able to sue them to get your judgment.
 

topaz99

Junior Member
the forwarding address at post office was PO Box.

I could try another skip-trace, it's been about 3 months since the last one turned up nothing but how likely is there to be any change in the info? the 1st process server also tried requesting the address from the post office but got nor response yet.

all the process servers I have spoken to seem to be the same. they won't guarantee what they will or won't do and it's a large corporate building that won't allow them in and if they don't say they are a process server, they just call the defendant and he doesn't answer.
 

sandyclaus

Senior Member
You can always subpoena the physical address associated with the PO box.

And as far as the process server, of course they won't be able to guarantee service. However, there are those services that go above and beyond. If the server knows what your tenant looks like, or what kind of vehicle they drive, they could wait for them in the parking area, or follow them home from work to get them served. The kinds of process servers that go that extra mile often cost more, but their creativity and success often leads to better results than just someone who goes up to the door and asks for them.

As for the PO box, if you can show that the PO box is a good address for the defendant, and that they made sufficient attempts to deliver and the service was refused, the courts will often accept that as sufficient.
 

tranquility

Senior Member
Background - I am landlord and only had the defendant's work address to serve. Used 2 3rd party servers and neither was successful. One made numerous attempts and made numerous phone calls/voicemails and documented in affidavit. 3rd attempt was through the court via certified mail, also unsuccessful. Skip trace did not reveal current address.
So, was it his "usual workplace" or no?

(e) Personal Service. Personal service shall be as follows:
(1) Upon a natural person whose age is eighteen years or older by delivering a copy thereof to
the person, or by leaving a copy thereof at the person’s usual place of abode, with any person
whose age is eighteen years or older and who is a member of the person’s family, or at the
person’s usual workplace,
with the person’s SUPERVISOR, secretary, administrative assistant,
bookkeeper, HUMAN RESOURCES REPRESENTATIVE or managing agent; or by delivering
a copy to a person authorized by appointment or by law to receive service of process.
 

FlyingRon

Senior Member
If the PO Box is associated with someone doing business with the public they were obliged to provide actual information.
A private citizen PO box need not disclose an actual address.
 

topaz99

Junior Member
yes, it is his usual workplace. it is a national corporation with corp. HR out of state. there is a local HR dept. but I think it is not i this building. the receptionist would not accept service or give the HR contact info/location, or supervisor name. I also tried calling corporate to get the supervisor name and was not able to.
 

tranquility

Senior Member
yes, it is his usual workplace. it is a national corporation with corp. HR out of state. there is a local HR dept. but I think it is not i this building. the receptionist would not accept service or give the HR contact info/location, or supervisor name. I also tried calling corporate to get the supervisor name and was not able to.
"Accepts" service? Who does that? One leaves a copy.
 

topaz99

Junior Member
the last process server stated in affidavit the company would not allow process server access into the building.

i believe the receptionist in the lobby of the building is not an employee of the company defendant works at, and the 1st process server stated they would need the HR contact, direct supervisor, or the employee's assistant (as opposed to just any receptionist/admin)
 

tranquility

Senior Member
the last process server stated in affidavit the company would not allow process server access into the building.

i believe the receptionist in the lobby of the building is not an employee of the company defendant works at, and the 1st process server stated they would need the HR contact, direct supervisor, or the employee's assistant (as opposed to just any receptionist/admin)
Many process servers do the minimum, easy jobs. Others do the more difficult ones. They are far more expensive. Yet, it will be cheaper than getting into court and doing some service by alternative methods. Service can be hard when the person is ducking service. Hire someone to do it properly. Everyone can be found. You usually save the publication service for those outside the country or who are presumed, but not proven, dead.

Hire a private detective, pay the hundreds necessary to serve. If the suit is not worth that much, forget it.
 

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