Carlson v. Bos

STEWART, Associate Chief Justice

(concurring in the result):

Although I agree with the result reached by the majority, I do not agree with the majority’s view of Graham v. Sawaya, 632 P.2d 851 (Utah 1981). The majority states that Graham held:

[Tjhe form of notice required by the federal constitution [depends] on whether the action is labeled in rem or in person-am. This also leads us to reject Graham ’s conclusion that substitute service accompanied by mailed notice sent to a last known address can never satisfy the requirements of due process, as those requirements are explained in Mullane.

Graham did not base the form of notice required on whether the action is labeled in rem or in personam, as I read it. In Graham, the Court did note:

Notice by publication has been found acceptable in some circumstances for a judgment in rem or quasi in rem, where, so far as defendant is concerned, the judgment affects only an interest in property or status within the territorial jurisdiction of the court. Even in that circumstance, however, publication is not a constitutionally acceptable means of notice of the pendency of litigation where “it is not reasonably calculated to reach those who could easily be informed by other means at hand.”

632 P.2d at 853-54 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 319, 70 S.Ct. 652, 660, 94 L.Ed. 865 (1950)).

But the Court did not hold that the nature of the action controls or that service on a nonresident defendant’s last place of residence is invalid when due diligence is exercised in trying to find the defendant. The Court actually applied the same rule which the majority opinion applies to the facts of the instant case, i.e., that the “governing constitutional principle on which we rest our decision is the due process require*1279ment that the mode of service be ‘reasonably calculated to give [defendant] actual notice of the proceedings and an opportunity to be heard,' Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940)....” Graham, 632 P.2d at 854.

Although the plaintiff had undertaken a diligent search for the defendant within the State of Utah in Graham, the defect in the service of process was that the defendant resided outside the State of Utah and there had been no effort to locate the defendant’s current residence. Id. at 852 n. 1. Under those circumstances, service by publication with service to the defendant’s last known address was constitutionally inadequate because there was no showing as to when the defendant had resided at the last known address, what likelihood there was that mail sent to that address would be forwarded, or that the defendant could not with reasonable effort have been found.

Greene v. Lindsey, 456 U.S. 444, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982), rejects the majority’s position that the concepts embodied in the terms “in rem” and “quasi in rem” are no longer relevant at all in determining the adequacy of notice. In Greene, as in Mullane and Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), the Court made clear that the nature of the cause of action could have a bearing on the reasonableness of the notice given a defendant. The Court stated:

That is not to say that the nature of the action has no bearing on a constitutional assessment of the reasonableness of the procedures employed. The character of the action reflects the extent to which the court purports to extend its power, and thus may roughly describe the scope of potential adverse consequences to the person claiming a right to more effective notice.

Greene, 456 U.S. at 450, 102 S.Ct. at 1878.

The Court held in Greene that notice tacked to the door of a defendant in a forcible entry and detainer case did not constitute a valid service of process where the evidence indicated a likelihood that notice would be taken off the door by neighbors or other persons. Thus there was a real possibility that the defendant would not receive actual notice. In holding the service constitutionally inadequate, the Court summarized its rationale by stating that “the reasonableness of the notice provided must be tested with reference to the existence of ‘feasible and customary’ alternatives and supplements to the form of notice chosen.” Id. at 454, 102 S.Ct. at 1880.

What is critical is that a plaintiff use reasonable diligence in trying to locate a defendant and provide a “reasonable assurance” that the defendant will receive notice by service that is “reasonably calculated” to give notice. Diligence, in this context, means that “all reasonable means ... [are] exhausted” in trying to determine whether a defendant is a nonresident or a departed^ resident and what the defendant’s last known address is. Kintigh v. Elliott, 280 Or. 265, 270, 570 P.2d 659, 662 (1977). See also Ter Har v. Backus, 259 Or. 478, 481, 487 P.2d 660, 662 (1971). “Last known address” means the last known address so far as it is reasonably possible to ascertain it. Medeiros v. Kaye, 31 Conn.Sup. 370, 331 A.2d 351, 352 (1974) (cited by the majority opinion). Under rare circumstances, this may be the address last known to the plaintiff, but normally it would be “the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it.” D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 171, 455 A.2d 833, 838 (1983) (quoting Hartley v. Vitiello, 113 Conn. 74, 80, 154 A. 255, 258 (1931)). This may require a plaintiff to make an investigation. For example, a plaintiff might make inquiry at the post office of the address last known to the plaintiff, at the defendant’s last known employer, at public utility companies in the area of the address last known to the plaintiff, of the defendant’s neighbors in the area of the address last known to the plaintiff, and of the defendant’s friends and relatives. Kintigh, 280 Or. at 270, 570 P.2d at 662; Ter Har, 259 Or. at 482, 487 P.2d at 662.