U.S. Court of Appeals Reverses Decision on Service by Publication

The defendant in this federal lawsuit owned two homes. One was in California and the other was in Wisconsin. Craig Cunningham filed a lawsuit against Michael Montes and tried to serve Montes at his Wisconsin address. No one came to the door. The process server called Montes; he refused to provide his current location. After an ex parte submission by Cunningham, the U.S. District Court judge authorized service by publication.

Cunningham published notice in periodicals that circulate only in the Midwest. When Montes did not answer the complaint, the district court entered a default.

After learning of the lawsuit from a defendant in another of Cunningham’s lawsuits, Montes asked the court to set aside the default. The judge declined, stating that Montes had persistently tried to evade service in both California and Wisconsin. The judge then entered judgment for more than $175,000. Montes appealed.

The U.S. Court of Appeals in Chicago began its opinion by stating that the judge in the district court did not elaborate on how Montes had attempted to evade service in either state. The appeals panel noted that, though no one opened the door at Montes’s Wisconsin residence when a deputy sheriff arrived with a summons, being at a different home and a different state is not a form of evading service.

Further, the panel stated that the fact that Montes failed to provide his location when the deputy sheriff called was also not evidence that he was attempting to evade service, as anyone can claim to be a public official with the need of information over the phone and few people will give such information in response to a cold call.

It was admitted that Cunningham did not try to serve Montes in California. The Wisconsin law states that the propriety of resorting to publication is determined by whether reasonable diligence has or has not succeeded in producing service in hand.

The panel found that the district court had failed to explain why the reasonable diligence standard was satisfied when service was attempted at only one of the defendant’s known residences. Montes submitted an affidavit that stated that his principal residence is in California and had listed all of the dates during which he and his wife were in Wisconsin. Cunningham argued that Montes was lying, but the panel noted that the district court judge had not found statements in the affidavit to be false.

Accordingly, the court of appeals reversed the district court’s decision and remanded the case for further proceedings.

Cunningham v. Montes, et al., No. 17-2516 (U.S. Court of Appeals for the 7^th Circuit, Feb. 21, 2018).

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