With nearly a hundred years of cumulative experience in litigation cases, our management team is extremely well-versed in the rules of filing and service. Service is such a critical component of litigation that our Managing Partner, Philip Becnel, included a chapter on the rules of service in his book, Introduction to Conducting Private Investigations.Every court jurisdiction has its own rules of service, but generally speaking, most subpoenas require personal service on the witness, while the rules of service for summonses generally give some leeway to serve through a proxy at the defendant’s abode. Another major difference between summonses and subpoenas is that summonses can typically be served extra-jurisdictionally, while subpoenas (with some exceptions) can only be enforced when they are served within their own jurisdictions. Serving subpoenas extra-jurisdictionally requires first “domesticating” them at the local court. Knowing the intricacies of the rules of service — when, where, who, and how to serve — is so important because botching service can cause missed filing deadlines and other catastrophes. Most people do not dodge service — but those who do dodge can be exceedingly difficult to catch. Our philosophy is that we first give people a chance to be good citizens and accept service without subterfuge, but once they dodge us we pull out all the stops to serve them. Industrious and creative, we know that quick action and clever ideas are often needed to track down hard-to-serve defendants and witnesses. Below are two case studies that demonstrate some of the creative solutions we have used to serve difficult defendants.
Case study #1
In one case we were hired to do an investigation for plaintiffs’ counsel in a class action case against a nursery that was accused of not paying its workers overtime, which is mandated for hourly workers under federal law. The company only had one owner/officer — who was also being sued as an individual — and this defendant also happened to be the company’s registered agent. We therefore had to serve this person with two summonses (and two complaints): one as the registered agent for his business and the second in his individual capacity.
We first tried to serve this defendant at the nursery, but his office was in the back of the building, and the receptionist told us he was not there. However, we learned from some of his employees (who were opt-ins in the lawsuit) that the defendant had been there but had left out the back door when he learned of the summonses. He had reportedly got wind of the lawsuit through an employee who remained loyal to him.
At this point, we could have tried to serve one of the summonses — the one directed to the defendant personally — to his wife at their home, since the rules of service in this case allowed for service to a family member living at the subject’s abode. However, we decided not to do this, since this would not satisfy service to the company, and because we now knew the defendant would actively dodge us.
Another complication was that the nursery had an elaborate security system which allowed the defendant to sit in his office and see everyone coming and going from the building. Catching him with his guard down was going to be incredibly difficult. Likewise, we knew that we would never get him to come to the door at his house. We had to find a way to catch him between the nursery and his home.
Our private investigator set up surveillance close to the end of the workday in a park across the street from the nursery, waiting for the defendant to get into his car. When the defendant got into his car and started driving home, our investigator got on a motorcycle and followed the defendant from a distance that did not draw suspicion. It was a beautiful spring day, and the defendant had his window open.At a red light, our investigator pulled up next to the defendant and dropped both summonses (and complaints) onto his lap. The light turned green, and our investigator took off and was gone before the defendant even realized he had been served.
Case study #2In another case we worked for plaintiff’s counsel in a tort case. The plaintiff was a woman who had been sexually assaulted by the defendant, a wealthy man who thereafter fled the United States, taking up refuge in a Middle Eastern country. Because personal service was not a practical option, the attorney requested that the judge grant us an alternative: service via email. Although very rare, some courts have allowed for service by email in extreme cases. There was a hitch in this case, however: the judge told us that, for the service to be considered valid, we had to be able to show definitively that the email account was still in use, that the defendant was actively opening emails on this account. This task is not as easy as one might expect. Surely there are features on many common email programs, including Microsoft Outlook, where the sender can request a return receipt. This would show that an email was opened. However, those features require the sender’s complacency in acknowledging receipt of the message, something that we could not count on in this case. There are also programs used by marketing companies that can often tell you if an email is opened or not, but obviously we could not use a marketing company’s email program to send this email for us. What we had to do was figure out how those programs work and mimic the result in our own email. Consulting with a web developer, we discovered that the way marketers know when an email is opened is by tracking pieces of html code that a recipient inadvertently downloads when he opens an email. Not all email programs automatically download this html code, however; some programs require the recipient of the email to download it manually. We therefore had to concoct a message that the defendant would certainly want to open, thereby downloading the html code we implanted into the message. Knowing that he was a rich playboy who fancied himself a womanizer, we first sent him a personal message purportedly from a woman he met in the United States, and we attached a “picture” to refresh his memory. The picture was really just a few random dots which he unwittingly downloaded from a website we created for this specific purpose. By tracking where this unique code was downloaded, we were able to determine the defendant’s exact whereabouts — and we could pinpoint exactly when the message was opened. Our next email to him contained the summons and complaint, and he was officially served.