Motions for Alternate Service — What to Do When the Defendant Cannot Be Personally Served
Published .
Wiant v. Hudson and the Insurer Connection
Wiant v. Hudson, 101 Md. App. 74, 648 A.2d 482 (1994), is a central authority for this problem. The discussion below explains discovery from the insurer to locate its insured, the ordinary absence of address privilege, the factual basis for court-authorized service through an insurer or retained counsel, and the need to protect the case from premature Rule 2-507 dismissal. Counsel retained to defend the insured is not automatically authorized to accept original process.
Filing the complaint does not bring the defendant before the court.
Service does.
Sometimes, however, the plaintiff knows who the defendant is, has filed a timely action, and has made genuine efforts to accomplish service—but the defendant cannot be found or ordinary methods of service simply do not work.
Maryland law provides a solution.
Under Maryland Rule 2-121(c), a circuit court may authorize another method of service when the plaintiff demonstrates by affidavit that good-faith efforts to accomplish ordinary service have failed and that the rule's provisions concerning evasion of service are inapplicable or impracticable.
The important words are good-faith efforts.
Alternate service should not be treated as a shortcut around ordinary service. It is the remedy available after reasonable efforts to accomplish ordinary service have actually been made.
Start With the Ordinary Methods of Service
Maryland Rule 2-121(a) provides the ordinary methods for serving an individual.
They include personal delivery, leaving the papers at the defendant's dwelling or usual place of abode with a resident of suitable age and discretion, and the prescribed form of certified mail.
Those methods should ordinarily be attempted before asking the court to authorize something else.
A motion stating simply:
"Plaintiff has been unable to serve Defendant."
does not tell the court very much.
The better motion tells the story of the investigation.
Rule 2-121(b): Evasion of Service
There is an important intermediate provision.
Rule 2-121(b) specifically addresses a defendant who has acted to evade service.
When the required proof is made by affidavit, the court may authorize the methods described by that section.
Evasion and inability to locate the defendant are not necessarily the same thing.
A defendant who sees the process server approaching and repeatedly refuses to answer the door presents one problem.
A defendant who moved from the last known address eighteen months ago and left no forwarding address presents another.
The motion should identify which problem actually exists.
Rule 2-121(c): Service by Order of Court
Rule 2-121(c) becomes important when:
1. good-faith efforts to serve the defendant under Rule 2-121(a) have not succeeded; and
2. service under Rule 2-121(b) is inapplicable or impracticable.
The court may then authorize another means of service appropriate under the circumstances and reasonably calculated to give the defendant actual notice.
That gives the court considerable flexibility.
But it also means the plaintiff should propose a method suited to the facts rather than simply ask for "alternate service" in the abstract.
Pickett v. Sears: The Governing Principle
The Supreme Court of Maryland addressed the parallel District Court provision in Pickett v. Sears, Roebuck & Co., 365 Md. 67, 775 A.2d 1218 (2001).
Once the plaintiff has established the required unsuccessful good-faith efforts and shown that the evasion provision is inapplicable or impracticable, the court may customize an alternative method of service according to the circumstances.
The constitutional limitation is fundamental:
The method must be reasonably calculated to provide actual notice.
That principle derives ultimately from the constitutional notice standard articulated in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).
Alternate service is therefore not permission to dispense with notice.
It is permission to use a different method to accomplish it.
What Are Good-Faith Efforts?
There is no magic number of service attempts that automatically establishes good faith.
Three mechanical attempts at the same address may prove less than one attempt followed by a serious investigation demonstrating that the defendant moved.
The court should be shown what counsel actually did.
Depending upon the case, that may include:
• attempts by a private process server;
• sheriff's attempts;
• attempts at different days and times;
• attempts at the last known residence;
• attempts at another confirmed residence;
• certified-mail service;
• investigation of forwarding information;
• Maryland Judiciary Case Search;
• property records;
• motor-vehicle information lawfully available to counsel;
• voter or other public records where available;
• professional licensing records;
• business records;
• corporate filings;
• internet searches;
• social-media investigation;
• telephone-number research;
• skip tracing;
• contacting known counsel where appropriate;
• investigation of a current employer;
• inquiries concerning relatives or other known contacts when legally and ethically appropriate; and
• other reasonable investigative methods suggested by the particular case.
The objective is not to create a long checklist.
It is to demonstrate a genuine attempt to locate and notify this particular defendant.
The Process Server's Affidavit Matters
A process server's return saying "non est" or "unable to serve" may be useful, but a detailed affidavit is considerably better.
Compare:
"Unable to serve."
with:
"On March 4 at 7:15 p.m., I went to 123 Main Street. The current occupant advised that Defendant moved approximately eight months earlier and left no forwarding address. I returned on March 8 and spoke with a different adult occupant, who independently stated that Defendant no longer resides there."
The second account gives the court evidence.
If a neighbor identifies a possible new location, document it.
If the residence appears vacant, document it.
If the defendant's name has disappeared from the mailbox, document it.
If someone states that the defendant moved, identify the substance of the information without embellishment.
Do Not Keep Sending the Process Server to an Address You Know Is Bad
There is little virtue in accumulating ten unsuccessful attempts at an address counsel already knows is obsolete.
Once the evidence establishes that the defendant does not live there, investigation should move to locating the defendant.
The question is not:
How many attempts were made?
It is:
What reasonable efforts were made to accomplish actual service?
Motor-Vehicle Cases
Alternate service issues frequently arise in automobile cases.
The plaintiff may have:
• the defendant's name;
• date of birth;
• driver's-license information;
• vehicle information;
• insurance information; and
• an address appearing on the police report.
But by the time suit is filed, the defendant is gone.
The police-report address is evidence of where the defendant could be found at one point in time.
It is not a guarantee that the defendant still lives there.
Counsel should begin locating the defendant early rather than waiting until limitations approaches or the court issues a Rule 2-507 notice.
Use the Insurance Relationship
In an automobile case, liability insurance can provide another important investigative path.
The carrier may possess:
• a more recent address;
• telephone numbers;
• email addresses;
• recorded statements;
• correspondence from the insured;
• claim forms;
• repair information; or
• contact with defense counsel.
Whether and how particular information can be obtained depends upon the circumstances.
But the existence of an active insurer defending or investigating the occurrence should not be ignored while counsel repeatedly attempts service at an obviously obsolete address.
When the Insurer Can Help Locate or Notify the Defendant
Wiant v. Hudson, 101 Md. App. 74, 648 A.2d 482 (1994), supplies two practical routes when diligent service efforts fail: discovery to locate the insured and court-authorized substituted service through the insurance relationship.
The court held that the plaintiff should have been allowed to depose the insurer to locate the defendant; an adverse party's address ordinarily is not privileged, subject to safety concerns. The first subpoena was procedurally defective, but the second should not have been quashed. Obtain any required leave for an early deposition and comply with notice and organizational-deposition requirements.
The court also explained that substituted service on the insurer or its retained lawyer should be ordered if coverage existed, every reasonable ordinary-service effort had been made, and ordinary service remained impossible. Give known insurer counsel the motion and hearing request, certify notice, and allow a response; disputed material facts may require an evidentiary hearing. Retention alone does not automatically authorize counsel to accept service.
Finally, the court reversed dismissal entered before the court's own Rule 2-507 deferral expired. Preserve both tracks: pursue service diligently and separately respond to a contemplated-dismissal notice.
Employment Can Provide a Useful Route
If the defendant's employer is known, that fact can assist both in locating the defendant and in designing alternate service.
An employer may not voluntarily disclose private information.
But the known workplace can nevertheless be relevant to:
• personal-service attempts;
• the Rule 2-121(b) analysis;
• subpoenas where procedurally appropriate;
• investigation; or
• a proposed alternative method reasonably calculated to provide notice.
Again, the proposed method should be tailored to the evidence.
Social Media Is Evidence, Not Magic
A current social-media account can provide useful information concerning:
• location;
• employment;
• recent moves;
• relatives;
• business activity; and
• other contact information.
It may also demonstrate that an email address or messaging account is actively used.
But finding someone's Facebook, Instagram, LinkedIn, or other account does not automatically mean that sending a complaint through that platform constitutes valid service.
The court must authorize the alternative method when Rule 2-121(c) applies.
The stronger motion explains why the particular electronic method is likely to reach the defendant.
Email as Alternate Service
Suppose counsel has an email address that the defendant recently used to communicate with the plaintiff, insurer, property manager, employer, or another person involved in the dispute.
That may provide a strong factual basis for asking the court to authorize email as part of alternate service.
The motion should explain why counsel believes:
• the address belongs to the defendant;
• the account remains active; and
• transmission to that account is reasonably calculated to provide actual notice.
Whenever feasible, combining methods may be preferable.
For example, the requested order might authorize service by:
• first-class mail to the last known residence;
• email to a verified active account; and
• another method supported by the evidence.
Publication Should Not Be an Automatic First Choice
Publication has traditionally been used when a party cannot be located.
But publishing a notice in a newspaper that the defendant is highly unlikely to read may provide less actual notice than modern alternatives.
The constitutional question remains whether the chosen method is reasonably calculated under the circumstances to provide notice.
Publication may be appropriate in some cases and specifically required in others.
But Rule 2-121(c) allows the court to tailor the method to the facts.
Counsel should therefore think about how this defendant is actually most likely to receive notice.
Ask for a Specific Method
Do not merely ask:
"Plaintiff requests alternate service."
Tell the court what you want.
For example:
Plaintiff requests authorization to serve Defendant by simultaneously mailing the summons and complaint by first-class and certified mail to Defendant's last known residential address and emailing copies to the email address Defendant used in communications concerning the occurrence.
Or, when supported by the facts:
Plaintiff requests authorization to mail the pleadings to Defendant's last known residence and current employer and to deliver a copy to a person of suitable age and discretion at the identified workplace.
The court can modify the proposal.
But giving the judge a concrete solution is preferable to presenting only a problem.
Attach the Evidence
A useful motion may attach:
• affidavits of unsuccessful service;
• sheriff's returns;
• process-server affidavits;
• returned certified mail;
• postal documentation;
• relevant public-record search results;
• affidavits describing investigative efforts;
• correspondence demonstrating a current email address;
• other evidence establishing likely contact information; and
• a proposed order.
The motion itself should summarize the investigation chronologically.
Make it easy for the court to see that ordinary service was genuinely attempted.
Rule 2-507 Is Waiting in the Background
Maryland Rule 2-507 creates an additional reason not to allow service problems to drift.
An action can become subject to dismissal for lack of jurisdiction when the defendant has not been served within the period prescribed by the Rule.
The clerk then issues a notice of contemplated dismissal, and the plaintiff must act within the Rule's deadline if dismissal is to be deferred.
That is not the ideal time to begin searching for the defendant.
Do Not Wait for the 2-507 Notice
The better record is:
We have been trying intelligently to locate this defendant for months.
The weaker record is:
We received a dismissal notice, so yesterday we ran an internet search.
A plaintiff asking the court to defer dismissal should be able to demonstrate continuing efforts to accomplish service.
The alternate-service motion itself may become powerful evidence of diligence because it documents what counsel has already done.
If a 2-507 Notice Arrives, Respond to It Separately
A motion for alternate service should not necessarily be assumed to constitute a motion to defer dismissal under Rule 2-507.
If the clerk issues a notice of contemplated dismissal, address that notice directly and within the prescribed period.
Ask for deferral and explain the service history.
A recent unreported Appellate Court decision illustrates the danger: a litigant had previously filed a motion for alternative service but did not file the required response to the later Rule 2-507 contemplated-dismissal notice, and the action was dismissed.
Do not assume that one motion performs the function of the other.
Limitations Makes Dismissal Particularly Dangerous
A Rule 2-507 dismissal may technically be without prejudice.
That does not mean the plaintiff is unharmed.
If limitations has expired, a dismissal without prejudice may effectively end the claim.
That makes service management particularly important in cases filed shortly before limitations.
Filing the complaint is only the first step.
The plaintiff still needs jurisdiction over the defendant.
A Practical Office System
For every newly filed complaint, counsel should calendar:
• issuance of summons;
• expiration of summons;
• first service attempt;
• follow-up service review;
• investigation deadline if first address fails;
• reissuance of summons when necessary;
• Rule 2-507 exposure; and
• an internal date for deciding whether alternate service should be requested.
Service should be treated as an active litigation task rather than something delegated to a process server and forgotten.
Pro Forma Motion for Alternate Service
When seeking the insurer route recognized in Wiant, add supported allegations identifying the policy, insurer and retained counsel; establishing applicable liability coverage, every reasonable effort at ordinary service and why it remains impossible; and describing the requested delivery and mailing steps. Serve known insurer counsel with the motion and hearing request and include a certificate identifying the date, method and recipient. Request findings and an order specifying service on the insurer or retained lawyer, any companion mailing to the last known address, and proof of compliance. These options require a court order.
The following is a starting form for adaptation to an ordinary Maryland circuit-court civil action. The supporting facts should be customized carefully. A generic affidavit stating only that the defendant "cannot be located" defeats much of the purpose of the motion.
IN THE CIRCUIT COURT FOR __________ COUNTY, MARYLAND
[PLAINTIFF],
Plaintiff
v. Case No. __________
[DEFENDANT],
Defendant
PLAINTIFF'S MOTION FOR ALTERNATE SERVICE
Plaintiff, by counsel, pursuant to Maryland Rule 2-121(c), moves for an Order authorizing alternate service upon Defendant [name], and states:
1. Plaintiff filed this action on [date].
2. The Clerk issued a summons for Defendant [name] on [date].
3. Defendant's last known residential address is [address].
4. Plaintiff has undertaken good-faith efforts to serve Defendant pursuant to Maryland Rule 2-121(a).
5. Specifically, service was attempted as follows: a. On [date/time], [sheriff/process server] attempted service at [address], with the following result: [result]. b. On [date/time], service was again attempted at [address], with the following result: [result]. c. On [date/time], service was attempted at [additional address/workplace], with the following result: [result].
6. Plaintiff thereafter undertook additional efforts to locate Defendant, including [describe skip trace, public-record searches, property search, Case Search, postal information, internet research, employment investigation, social-media research, insurer information, or other efforts actually undertaken].
7. Those efforts disclosed [describe pertinent results].
8. Copies of the relevant returns and affidavits of attempted service are attached as Exhibits ___.
9. Despite these efforts, Plaintiff has been unable to accomplish service pursuant to Rule 2-121(a).
10. Service pursuant to Rule 2-121(b) is [inapplicable/impracticable] because [state specific reason].
11. Plaintiff has identified the following means by which notice is reasonably likely to reach Defendant: [last known mailing address/current email/current employer/other verified contact method].
12. Specifically, [describe facts establishing that the proposed email, mailing address, workplace, electronic account, or other method actually belongs to or is regularly used by Defendant].
13. Plaintiff therefore requests authorization to serve Defendant by [describe each requested method precisely].
14. The proposed method is reasonably calculated under the circumstances to provide Defendant actual notice of this action.
WHEREFORE, Plaintiff respectfully requests that this Court enter an Order:
A. Authorizing service upon Defendant [name] pursuant to Maryland Rule 2-121(c) by [precisely describe method];
B. Providing that service shall be deemed complete upon [describe event]; and
C. Granting such other and further relief as the Court deems appropriate.
Respectfully submitted,
THE BELSKY LAW FIRM
By: __________________________
Alan J. Belsky
Counsel for Plaintiff
AFFIDAVIT
I solemnly affirm under the penalties of perjury that the factual statements concerning the efforts undertaken to locate and serve Defendant set forth in paragraphs ___ through ___ of the foregoing Motion are true and correct to the best of my personal knowledge, information, and belief.
[Affiant]
PROPOSED ORDER
Upon consideration of Plaintiff's Motion for Alternate Service and the supporting affidavit and exhibits, the Court finding that Plaintiff has made good-faith efforts to serve Defendant pursuant to Maryland Rule 2-121(a), that those efforts have not succeeded, that service pursuant to Rule 2-121(b) is inapplicable or impracticable, and that the alternative means requested are reasonably calculated to give Defendant actual notice, it is this ___ day of ________, 20,
ORDERED, that Plaintiff may serve Defendant [name] by:
1. [First-class and/or certified mail to specified address];
2. [Email to specified email address];
3. [Delivery or mailing to another location];
4. [Publication/posting if ordered]; and/or
5. [Other specifically authorized method];
and it is further
ORDERED, that Plaintiff shall file proof demonstrating compliance with this Order; and it is further
ORDERED, that service shall be deemed complete upon [event/date prescribed by Court].
JUDGE
Related Maryland Cases and Authorities
Wiant v. Hudson, 101 Md. App. 74, 648 A.2d 482 (1994) — insurer discovery to locate an unserved insured, substituted service through the insurer or retained counsel on the required factual showing and notice, and premature Rule 2-507 dismissal. Opinion: https://www.casemine.com/judgement/us/5914bdeeadd7b049347a52bc
• Maryland Rule 2-121(a) — establishes the principal methods for serving an individual in a Maryland circuit-court action.
• Maryland Rule 2-121(b) — addresses service when affidavit evidence establishes that a defendant has acted to evade service.
• Maryland Rule 2-121(c) — permits court-ordered alternative service after unsuccessful good-faith efforts under subsection (a) and a showing that subsection (b) is inapplicable or impracticable; the alternative must be appropriate and reasonably calculated to provide actual notice.
• Maryland Rule 2-121(d) — makes clear that the methods specified by the Rule are not necessarily exclusive of other service methods authorized by statute or rule.
• Maryland Rule 2-507 — governs contemplated dismissal for lack of jurisdiction or prosecution and permits a motion to defer dismissal for good cause.
• Pickett v. Sears, Roebuck & Co., 365 Md. 67, 775 A.2d 1218 (2001) — interpreting the parallel District Court rule, explains that once the required showing is made, the court may tailor alternative service to the circumstances, subject to the requirement that the method be reasonably calculated to give actual notice.
• Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) — foundational due-process authority requiring notice reasonably calculated under the circumstances to inform interested parties of the proceeding.
• Maryland Judiciary materials also provide a current Motion for Alternate Service and Affidavit, Form CC-DR-070, for family-law matters, which can be useful as a reference for the type of factual showing the court expects, although an ordinary civil tort action should use a motion tailored to that action.
Maryland Judiciary — Service of Process and Alternate Service
Maryland Judiciary — Service and Proof of Service Guidance