Definition of “Evasive Defendant”.
An “evasive defendant” is an individual or entity that willfully behaves in a way that will hurt the ability of the process server to serve process on that individual or entity easily or in a timely manner. Sometimes evasive defendants may effectively evade process service by building a barrier of circumstances, actions and decisions that practically leave the process server powerless, at least for the time being. The typical process service evader is the guy who has a locked gate without intercom or bell, gets assisted by his co-worker to tell the process server that he is not in, does not answer the door or uses several evasive maneuvers. But some examples of service of process evaders tend to be more complex:
1- Jane Doe is a federal employee whose home address is unknown but whose work place is at 12 Center St., New York, NY 10001. When the process server calls her at her work place she answers and identifies herself but as soon as she is informed that the process server is at the lobby of the building and that he intends to serve her a child support summons and petition , she hangs up. When the process server approaches the front desk security guard or her supervisor, the server is informed that they will not allow service on Jane Doe because she is a federal employee or because “our policies prohibit service of process at our employee’s work place”.
2- John Doe works at a smoke cessation center as a therapist. He has repeatedly refused to open the door of his home in order to accept divorce petition from the process server. The process server makes an appointment “to kick his smoking habit”( A ruse intended to gain access to Defendant in order to serve him because otherwise defendant will not allow anybody to come to his Center unless he/she is a real patient). But John Doe suspects that he will be served on the Friday he has the appointment with the ” chain-smoking” process-server-turned-patient so he chooses not to work that day and assigns a colleague to care for his patients.
3-Jane Doe has a locked fence around her detached home, no bells, no intercom. An order of protection must be served on her personally. The only way to get to the front door of the premises is by going though the locked gate which , despite not having intercom or bell buttons, has security cameras checking all visitors who stand at the front of the house.
4-John Doe has a pending civil court complaint but he has a dog, without a leash, who will jump on anybody who attempts service on him. He walks with his dog and sends it to the entrance door whenever a stranger approaches. He has threatened to call the police on anyone who knocks on his door.
5-Acme Failing, Inc. is a corporation involved in securities fraud. Its managers know that hundreds of lawsuits filed by cheated investors will arrive at its corporate headquarters. When the process server approaches security guards at the front desk and announces his intentions to serve a summons and complaint against the corporation, he is allowed to call a “company” number where a woman plainly says : “We don’t accept summonses at this location”. The process server, aware that they are evading service, leaves a copy of the court papers with security guards and leaves the building. The security guards chase the process server ,who has already been threatened with a trespassing complaint, and try to force the process server to take back the court papers.
6-John Doe knows that his ex-wife is seeking full child custody . Whenever the process server knocks on his door with the Family Court petition, she gets the feeling that the house is vacant: No one answers her door knocks.
7-Jane Doe is approached by the process server as she leaves her home. Previously, she has evaded the service of a divorce complaint against her by telling the process server that she would not open the door. “Are you Jane Doe?”, the process server asks as he prepares to hand her the divorce summons and complaint. Jane Doe replies: “No. Leave me alone or I’ll call the police and have you arrested for harassment “.
8-Police officer John Doe’s only known address is his work place at 1 Police Plaza. There is a personal lawsuit against him and the summons must be given to him in person. When the process server approaches the main entrance of the building, security officers inform him that they do not allow process to be served there on police officers and that the process server should use anther office in “another location”. But it turns out that the office “in the other location” originally told the process server a similar story -that they do not accept process but it is “another office” at 1 Police Plaza.
9- A major corporation that does business in New York has been subpoenaed but when the manager of one of its local branches where the subpoena was sent to is approached he says: “Serve the subpoena in Georgia because we don’t accept court papers here”. The process server leaves the subpoena with the manager even though he has called security to throw him out of the premises and he has called the police in order ” to have the process server arrested”.
How to Cope with Evasive Defendants.
Every evasive defendant has a reason to be evasive. Perhaps he would rather continue living as a squatter and ignore the eviction petition or perhaps he’d rather not support his children by evading the child support petition or perhaps he wants to still be endless tied to his former wife by evading her divorce summons. Whatever the circumstances are, there is always a solution to deal with evasive defendants. For example this is how we managed some real life cases successfully.
Employee Hiding Behind Job to Evade Child Support Papers.
We attempted service three times at her work place and issued an affidavit of attempted service. The State of New York Family Court judge hearing the case issued an order allowing substitute service (Also known as “nail and mail”).
Divorce Petition Evader Who Could Not Be Served at Work.
The process server waited at the entrance door of his apartment till Defendant left for work. As soon as he shut his door and turned towards the elevator the process server served him with the divorce papers.
Respondent with Locked Gate Who Did Not Want to Receive Order of Protection.
A stakeout was effected in order to serve Defendant. On a day she was not expecting service of the order of protection, a Sunday, she was served as she headed to church.
Dog Owner Who Threatens Process Servers.
The process server waited outside of Defendant’s home and checked for Defendant’s car and just waited till Defendant left for work.(You don’t bring your dog to work and this individual was no exception). At that point he served Defendant the civil court complaint. Defendant got enraged and threw the documents onto the street but it was too late. By law he was served and there was nothing he could do but get himself into more trouble by reacting in an uncivil way at the moment he got served. (The process server duly documented Defendant’s reaction in the corresponding affidavit of service).
A Corporation That Willingly Evades Service of Process of Summonses.
The process server upon being confronted by the security guards informed them that he was a public officer and that touching him or trying to force him into retaking the summons he had just served on the corporation was a serious violation of local laws. Upon hearing this the guards left quietly. If the guards had continued with their initial actions, the process server would have called the police and documented the circumstances of service upon this elusive Defendant.
A House That Seems Vacant.
In order to serve the child custody petition, we did some research and concluded that indeed the house had been vacated recently. Upon interviewing a neighbor and doing Internet research the process server located and served Respondent. In this case, the Respondent was not actively evasive of the process server but he was actually evading due process because he failed to report his most recent address to the court so the Family Court petition still bore Respondent’s old address.
Respondent Who Tried to Evade Process by Threatening Process Server.
In this case, for a Respondent who thought that by telling the process server to leave or by indicating she would call the police she was getting rid of the impending divorce summons and complaint, the process server just touched Respondent with the papers and left them within her reach (Defendant did not accept the divorce papers in her hands but she was legally served). If a process server behaves in a professional manner, she does not have to fear Respondent’s threats to call police.
Law Enforcement Individuals and Agencies That Support Process Service Evaders.
Even though Law Enforcement agencies and legal firms should be strong upholders of the Law, some police agencies and lawyers actively evade service by instructing their front desk attendants or officers to refuse process service attempts on the agency’s employees or on the attorneys themselves. In this case, the process server did not take no for an answer and demanded to see a supervisor or officer in charge who eventually allowed the service of process to be effected on the police officer.
Corporate Witness That Requests Service to Be Effected in Another State.
The process server served Witness at exactly the same place the subpoena was directed to, despite Manager’s words and threats. By law if you do business in the State of New York, you must allow service of process to be effected on you in the State of New York. It is important that the process server be acquainted with many local laws in order to properly effect service even against the opinions or suggestions of a large corporation that was just trying to evade service of a subpoena.
General Steps to Counter Process Service Evasion in the State of New York:
Landlord/ Tenant Cases, Service of Holdover Petition, Three Day Notices, Ten Day Notices, Thirty Day Notices, Notice to Quit, Eviction Notices, Non-payment Petitions, etc.
Solution: The process server must document the circumstances that keep her from effecting personal service and she must make at least three attempts at different times and different days. Normally substitute service (Serving a cotenant, fro example) or nail and mail (Affixing the petition and notice at the entrance door) is acceptable in most cases if personal service cannot be effected.
Divorce Summons and Petition
Solution: Service must always be personal upon the named Respondent but if documented attempts prove that this is not possible, then an affidavit of attempted service will suffice for the hearing judge to rule in favor of Plaintiff or to issue an order allowing service by publication or another form of substitute service such as posting or affixing the court summons at Respondent’s place of abode.
Federal Subpoenas and Civil Court Subpoenas.
Solution: Service must be effected in person but if Witness or Recipient refuse to accept the subpoena, the circumstances must be documented and in most cases the process server must ensure that the Witness gets a copy by regular mail and by certified mail.
Family Court of the State of New York, Child Support Summons, Child Custody Petition, Paternity Summons, Child Visitation Summons, Order of Protection, Order to Show Cause.
Solution: Family Court allows substitute service and it will allow nail and mail in most cases in which Respondent willingly refused to accept process. For order of protection, child custody and order to show cause, the process server must do diligent attempts to serve in person. In most cases, substitute service on Respondent will not be accepted by the Court unless a judge has previously ordered it.
Civil of the City of New York and Supreme Court of the State of New York Summons, Complaints and Orders to Show Cause.
Solution: If service cannot be effected in person, the court may issue an order to allow substitute service. However most summonses and complaints come with specific instructions as to how they can be served. In many cases, they can be served by leaving them with a person of suitable age willing to accept process on behalf of Defendant, or leaving them with an agent or affixing them at the entrance door of the premises (Defendant’s place of abode or work place). Mail service must be effected whenever substitute service is done.
Process Servers Must Respect the Law and Litigants’ Rights and Privacy. But Evasion of Process Service Usually Works Against Defendant’s Interests.
Though it may sound redundant, it should be noted that all professional process servers must respect defendants and plaintiffs equally. No matter how difficult a Respondent may be, the process server must never engage in activities intended to harass or to press the Defendant such as stalking, illegal surveillance, touching Defendant’s mail or other property, knocking or ringing Defendant’s door too many times,telephoning Defendant too much or verbally or physically assaulting Defendant. If the process service job cannot be effected because Defendant is not willing to accept process, the process server must leave the premises and document the circumstances of evasion of service for a future affidavit of attempted service. In the end evading service may provide additional breathing time to Respondent but it may hurt his credibility at trial. So evading service only works against the service evader.
Failing to comply with local laws and common sense may subject the process server and whoever hired him to sanctions, jail or civil lawsuits. Under extreme circumstances, process servers have been attacked or even killed allegedly because of trespassing into private property. Federal laws, State laws and local laws allow process servers to visit Defendants and to attempt service on them even if Defendants are unwilling to accept process. Also anybody who interferes with service of process may be subject to civil and/or criminal penalties.
