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How To Serve The Defendant When You Cannot Find Them?

Updated: Feb 2, 2021

After you have successfully filed a lawsuit, you may find yourself stuck on having a hard time getting the Defendant served. Without serving them with notice of the lawsuit, the court generally cannot hear your case on the merits. The due-process right protects all parties in legal proceedings to receive proper service before judges can make a decision that could impact their rights or finances. Put differently: if YOU were the one getting sued, you would want to have a chance to learn about the lawsuit and be able to prepare your defense.

a person is missing
cannot find the defendant?

Some Defendant(s) may be long gone, or flat out hiding from you. If you cannot successfully serve your lawsuit within a specific period of time, the judge may dismiss your case. Defendants have a constitutional due process right to receive a formal copy of the complaint and court summons in writing, but generally informal methods such as a text message do not meet the court’s requirements. Generally speaking, you have several options to serve your Defendant in Nebraska.

  1. Personal Service by delivering the summons to the Defendant.

  2. Residential Service by leaving the summons with an adult at the Defendant’s usual place of residence.

  3. Certified mail Service by sending summons to the Defendant through a USPS certified mail with a return receipt.

  4. Designated delivery by sending summons through a designated delivery service to the Defendant and get a copy of signed delivery receipt

If you know the Defendant’s address, the service of process is not too difficult. You can hire the local police or sheriff to help you deliver the summons. Constables are very helpful in tracking down the Defendant and complete the personal service. However, you will need to provide the person you hired to do the job with as much information as you can. For example, normally what time the Defendant is there, what vehicles they drive, what other persons live in their residence, are they dangerous, etc. The more information you can provide, the easier it should be to locate and serve the Defendant. It becomes a lot harder when the Defendant in your case does not have a known address, or they live in someone’s house and intentionally evades service.

The lawmakers in Nebraska fortunately have come up with several ways solve this problem. Nebraska Revised Statue 25-517.02 states, after reasonable diligence, if you cannot complete the service by the methods mentioned before, you can now ask the judge to let you serve the Defendant by (1) leaving the summons at his usual place of residence and mailing a copy to his last known address, (2) publish it in the local newspaper, or (3) by any other method the judge allows you under that circumstances that the Defendant has an opportunity to receive actual notice and be heard. When you suspect or know someone is dodging your lawsuit, you still need to first try using one of the normal service methods mentioned before. Once you have failed, you will need to submit a motion and an affidavit stating that you have tried but failed to serve the Defendant; therefore, the judge should allow you to serve the Defendant through court-ordered methods.

If the judge allows you to serve him by publication, you will need to publish a notice of lawsuit in a local newspaper once a week, for 3 continuous weeks. The publications should run in the locality most likely to provide the Defendant with notice. In the published notice itself, you need to say why they are being sued, where the case is pending, and the deadline for them to respond. In addition to publishing the notice in the newspaper, you also need to mail a copy of the published notice to the Defendant (and any person who has an interest in the lawsuit) to their last known address. After you mailed it, you need to submit a sworn statement to the court swearing that you have mailed such notice within 10 days after you mailed the notice. In other cases, judges sometimes allow service done by sending an email with attachments. This is a relatively new development in the legal practice. As communication technology advances, judges may become more open to conduct court proceeding via the Internet, including service by email. If you intend to request service by email, you need to at least show the judge that (1) the email address actually belongs to the Defendant, and not someone else; and (2) the Defendant is actually still corresponding through that email address, and is therefore likely to actually receive the notice

Ensuring that service is properly performed is an important part of any case. Not only is it a requirement for you to proceed with the case itself, but if it is not done properly it could provide a weak point for a Defendant to use in the future if they want to challenge the result of the lawsuit. Therefore, it is important to take the time to ensure that the court is satisfied with how service is achieved, and that a court reviewing the case in the future would come to the same conclusion.

Disclaimer: This article is for education purpose only. It does not offer any legal advice and should not constitute attorney-client relationship. Legal decisions may have serious consequences. You should consult with a lawyer for specific issues you wish to discuss.


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