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Is Your Defendant Absent Because She’s Serving Our Country?

One of the most annoying parts of representing plaintiffs in personal injury lawsuits is locating and serving the defendant driver with process. For non-lawyers, “process” refers to the summons issued by the court when a lawsuit is filed. The summons is an order from the court notifying the defendant of the lawsuit and directing her to respond within a particular time period. It is designed to make sure that anyone who is subjected to a lawsuit is given notice of the case and a chance to respond.

serving process defendant abroad
Most often, service of process is made by having a process server physically locate the defendant and hand her the papers. The process server executes a sworn affidavit documenting service, which is then filed with the court.

What if you can’t find the defendant to serve her? Or if the defendant has been served, but has never participated and seems to have vanished? You must consider filing a Motion for Alternative Service or a Motion for Entry of Order of Default.

Maryland, where I practice, is home to several major military installations that are growing all the time due to the Base Realignment And Closure (BRAC) process. Occasionally when a defendant can’t be located or disappears after being located, it turns out to be because of a military transfer or deployment.

It is a good idea to verify this before asking for alternate service, and it is mandatory before asking for the entry of a default judgment. The Servicemembers’ Civil Relief Act (here is a nice 146 page summary from the U.S. Army JAG via the American Bar Association) gives broad (and deservedly so) protections to service members who are sued. If you need to find out if a party to your case is on active duty, the federal government provides a website for just this purpose. Do not be alarmed that your browser may not accept the security certificate, this is an issue with the DOD’s certificate process. The site itself is fine.

If you skip this step, your motion is likely to be denied and if it is not, you likely face a big problem down the road when your defendant shows up and says “That’s not fair, I was on a mountaintop in Afghanistan!”