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Out-of-State Service

  • 1.  Out-of-State Service

    Posted 12-23-2015 01:15 PM

    Dear Listmates:

     

    Please allow me to pick your brains on an issue that has come up a number of times for me recently regarding service on an out-of-state defendant. I understand that under Rule 4:4-4(a), "[t]he primary method for obtaining in personam jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served within this State pursuant to R. 4:4-3 . . . ." (Emphasis added).

     

    Under Rule 4:4-4(b)(1)(A), we're allowed to personally serve an out-of-state defendant "in a state of the United States or the District of Columbia, in the same manner as if service were made within this State . . . [,]" but only if "it appears by affidavit satisfying the requirements of R. 4:4-5(b) that despite diligent effort and inquiry personal service cannot be made in accordance with paragraph (a) of this rule[.]" Subparagraph (a) clearly requires service within the State of New Jersey.

     

    So my question is this: If we know where the defendant lives, for certain, and can easily personally serve him there out-of-state or have already done so, is it still necessary to submit an affidavit of diligent inquiry (containing an inquiry into family, friends, former employers, possibly the DMV and military, etc.) to determine whether he can be served within this State pursuant to Rule 4:4-4(a)?

     

    Is there any way to get around this seemingly arduous process when you are already aware of the location of defendant's residence?

     

    In my reading, the rules for in rem and quasi in rem jurisdiction are of no use here because they also require an affidavit of diligent inquiry to serve an out-of-state defendant (but please let me know if I'm wrong). Also, I am aware that the defendant can waive defects in service by either (a) actually litigating the action without contesting jurisdiction, or (b) signing an acknowledgement of service. Because the actions are likely to proceed by default, I want to get this right to avoid having the judgment vacated sometime down the line.

     

    Very truly yours,

    Andrew

     

    ---

    ANDREW M. SHAW, ESQ.

    Divorce & Family Law Attorney

    DeTommaso Law Group, LLC

    73 Grove Street

    Somerville, NJ 08876

     

    Phone: (908) 595-0340

    Fax: (908) 595-0343

     

    This message is a confidential communication for the exclusive use of the intended recipient. If you are not the intended recipient, please notify me immediately and erase this message. If you are not a current client of the DeTommaso Law Group, this message is neither intended to constitute legal advice nor to establish an attorney-client relationship. If you have not signed a retainer with this firm, we are not your attorneys and we do not represent you in any capacity.

     



  • 2.  RE: Out-of-State Service

    Posted 12-23-2015 04:03 PM

    Andrew,

    I think you do have to file an Affidavit of Due Diligence.  They are permitting substituted service, but only if it is clear that the defendant cannot be served within the state.

    You don't have to prepare a lengthy document.

    Hanan

     


    hanan.gif

    Hanan M. Isaacs, Esq.

     

    t 609.683.7400   f 609.921.8982

    e [email protected]   w www.hananisaacs.com

    4499 Route 27, Kingston NJ

     

    Dear Listmates: Please allow me to pick your brains on an issue that has come up a number of times for me recently regarding service on an out...

    Family Law

      Post New Message

     

    Out-of-State Service

    Image removed by sender. Andrew M. Shaw, Esq

    Dec 23, 2015 1:15 PM

    Andrew M. Shaw, Esq

    Dear Listmates:

     

    Please allow me to pick your brains on an issue that has come up a number of times for me recently regarding service on an out-of-state defendant. I understand that under Rule 4:4-4(a), "[t]he primary method for obtaining in personam jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served within this State pursuant to R. 4:4-3 . . . ." (Emphasis added).

     

    Under Rule 4:4-4(b)(1)(A), we're allowed to personally serve an out-of-state defendant "in a state of the United States or the District of Columbia, in the same manner as if service were made within this State . . . [,]" but only if "it appears by affidavit satisfying the requirements of R. 4:4-5(b) that despite diligent effort and inquiry personal service cannot be made in accordance with paragraph (a) of this rule[.]" Subparagraph (a) clearly requires service within the State of New Jersey.

     

    So my question is this: If we know where the defendant lives, for certain, and can easily personally serve him there out-of-state or have already done so, is it still necessary to submit an affidavit of diligent inquiry (containing an inquiry into family, friends, former employers, possibly the DMV and military, etc.) to determine whether he can be served within this State pursuant to Rule 4:4-4(a)?

     

    Is there any way to get around this seemingly arduous process when you are already aware of the location of defendant's residence?

     

    In my reading, the rules for in rem and quasi in rem jurisdiction are of no use here because they also require an affidavit of diligent inquiry to serve an out-of-state defendant (but please let me know if I'm wrong). Also, I am aware that the defendant can waive defects in service by either (a) actually litigating the action without contesting jurisdiction, or (b) signing an acknowledgement of service. Because the actions are likely to proceed by default, I want to get this right to avoid having the judgment vacated sometime down the line.

     

    Very truly yours,

    Andrew

     

    ---

    ANDREW M. SHAW, ESQ.

    Divorce & Family Law Attorney

    DeTommaso Law Group, LLC

    73 Grove Street

    Somerville, NJ 08876

     

    Phone: (908) 595-0340

    Fax: (908) 595-0343

     

    This message is a confidential communication for the exclusive use of the intended recipient. If you are not the intended recipient, please notify me immediately and erase this message. If you are not a current client of the DeTommaso Law Group, this message is neither intended to constitute legal advice nor to establish an attorney-client relationship. If you have not signed a retainer with this firm, we are not your attorneys and we do not represent you in any capacity.

     

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    Original Message


  • 3.  RE: Out-of-State Service

    Posted 12-23-2015 04:09 PM

    I agree with Hanan.

    You are required to do due diligence if the defendant does not live in NJ.

    Submit  a short certification from you and an Order.

     

    Debra F. Schneider

    411 Hackensack Ave

    Hackensack NJ 070631

    201-445-8381

     

    Qualified Family Mediator




    Original Message


  • 4.  RE: Out-of-State Service

    Posted 12-23-2015 04:41 PM

    You sure do have to file an Affidavit of Due diligence, and it is JURISDICTIONAL. I came on a case once in Middlesex County quite a few years ago to represent a client who had a default-based divorce entered against him, including a QDRO and his retirement. I made a summary judgment application. The judge sat on it for months upon months. When we finally made it to court, the judge hopped on the bench and put a pile of papers at least three inches thick on top of her bench where we could see them. She announced that she researched the issue thoroughly trying to save the divorce, but couldn't find anything to prove the jurisdictional aspect of it to be anything but. The Rule reads the same today as it was written back then.

    ------------------------------
    Curtis Romanowski Esq.
    Senior Attorney - Proprietor
    Metuchen NJ
    (732)603-8585

    Original Message


  • 5.  RE: Out-of-State Service

    Posted 12-23-2015 05:12 PM

    I am handling a divorce in monmouth county now in which i just had the defendant served by the sheriff in Rockland county ny where she just moved back to live with her parents.  She has already accepted service.  I STILL need to do an affidavit of due diligence? If so does anyone have a sample of one?




    Original Message


  • 6.  RE: Out-of-State Service

    Posted 12-23-2015 05:16 PM

    By accept, do you mean she signed and returned an Affidavit of Service?

    ------------------------------
    Curtis Romanowski Esq.
    Senior Attorney - Proprietor
    Metuchen NJ
    (732)603-8585

    Original Message


  • 7.  RE: Out-of-State Service

    Posted 12-23-2015 05:18 PM

    No.  I'm sorry.  The sheriff served her.  I expect an affidavit from the sheriff.




    Original Message


  • 8.  RE: Out-of-State Service

    Posted 12-23-2015 05:53 PM

    SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION - FAMILY PART Plaintiff COUNTY OF v. DOCKET NO.: FM/D - Certification of Diligent Search Defendant

    I, _______________ of full age, hereby certify that:

    1. I am the plaintiff / defendant in the above-entitled action.

    2. I do not know the present whereabouts of the plaintiff / defendant, and have not seen or heard from him/her since on or about _________________.

    3. Despite diligent efforts, I do not know the plaintiff’s / defendant’s mailing address, and the last known address of record of the plaintiff / defendant is: ______________.

    4. I attempted to locate the plaintiff’s / defendant’s last known mailing address by contacting, on the following dates, the following individual(s) whom I believed possessed information about the plaintiff’s / defendant’s whereabouts. Result of search: ____________________.

    5. I performed a search to locate the plaintiff / defendant through the United States Post Office for the current address or any previous address. Result of search: ______________________.

    6. I inquired of the state motor vehicle agency at: ______________. Result of search: __________________________.

    7. The Department of Defense website was checked or letters were sent to the Armed Forces of the United States and their response as to whether or not there is any information regarding the plaintiff / defendant. Result of search: ___________________.

    8. My other attempts to locate the other party resulted in the following: _______________________.

    9. I have kept copies of the letters I sent and responses I received from the above individuals/agencies so that they can be submitted to the court as evidence of my attempts to find the plaintiff / defendant.

    10. My other car is a/an _______________________.

    I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to corporal punishment.

    ------------------------------
    Curtis Romanowski Esq.
    Senior Attorney - Proprietor
    Metuchen NJ
    (732)603-8585

    Original Message


  • 9.  RE: Out-of-State Service

    Posted 12-23-2015 05:56 PM

    Thank you!! Happy Holidays!




    Original Message


  • 10.  RE: Out-of-State Service

    Posted 12-23-2015 06:28 PM

    That's a great Certification to support due diligence in locating a spouse who is MIA.  But when the spouse has moved out of state and you know exactly where he lives, works, parties, etc.,  the Certification would have to focus on efforts you've made to serve him in NJ. 

     

    For example,

    "Hubby relocated to 123 Main St in Oshkosh, Wisconsin having moved in with his  %#!! girlfriend on November 1, 2015. 

     

    I called him on the following dates . . . . .asking him when he would be returning to NJ to visit with our 2 children.

    On each of those occasions, he stated that "It would be a cold day in Hell" before he returns to this "God-forsaken" state.   

     

    I contacted him by text message on ____ (date) inquiring whether he would be coming to NJ to celebrate the holidays with his children or for any other reason.

    He again referenced the weather in Hades and confirmed that he would not be returning to NJ in his lifetime. 

     

    I mailed him a letter (at his Oshkosh address) advising him that the kids cried themselves to sleep every night because they missed their Daddy and implored him to come back to NJ to spend a little time with them.  His written response confirmed that he has a new life now and that he doesn't have time to parent "those kids" in NJ "what with [his] responsibilities for [his] fiancee's 5 children, her aging parents and their 6 dogs."

     

    I went on his Facebook page to see if he had posted anything remotely suggesting that he had plans to return to NJ within the foreseeable future but, alas, the page was filled with photos of him and the %!@**! as well as rambling but inane comments.  Nothing he had posted on FB  led me to believe that he would be coming to NJ.

     

    I sent an e-mail to his mother on ____ (date) and tried to find out if she had any information regarding her darling son's plans to travel to NJ.  She had a few curt (but choice) words for me and none of them revealed his plans for traveling to NJ.

     

    I called his prior employer on ____ (date) …."

     

    You get the idea.

     

    Lisa M. Radell, Esq.

    207 South Main Street

    Cape May Court House, NJ 08210

    Tel (609) 465-9910

    Fax (609) 465-9920

     




    Original Message


  • 11.  RE: Out-of-State Service

    Posted 12-24-2015 09:49 AM

    I truly appreciate all of your responses. Thank you!

     

    ---

    ANDREW M. SHAW, ESQ.

    Divorce & Family Law Attorney

    DeTommaso Law Group, LLC

    73 Grove Street

    Somerville, NJ 08876

     

    Phone: (908) 595-0340

    Fax: (908) 595-0343

     

    This message is a confidential communication for the exclusive use of the intended recipient. If you are not the intended recipient, please notify me immediately and erase this message. If you are not a current client of the DeTommaso Law Group, this message is neither intended to constitute legal advice nor to establish an attorney-client relationship. If you have not signed a retainer with this firm, we are not your attorneys and we do not represent you in any capacity.

     




    Original Message


  • 12.  RE: Out-of-State Service

    Posted 12-24-2015 10:00 AM

    That's all I do to comply most of the time, particularly where the client knows exactly where the other party is living right from the horse's mouth.

    (b) Contents of Affidavit of Inquiry. The inquiry required by this rule shall be made by the plaintiff, plaintiff's attorney actually entrusted with the conduct of the action, or by the agent of the attorney; it shall be made of any person who the inquirer has reason to believe possesses knowledge or information as to the defendant's residence or address or the matter inquired of; the inquiry shall be undertaken in person or by letter enclosing sufficient postage for the return of an answer; and the inquirer shall state that an action has been or is about to be commenced against the person inquired for, and that the object of the inquiry is to give notice of the action in order that the person may appear and defend it. The affidavit of inquiry shall be made by the inquirer fully specifying the inquiry made, of what persons and in what manner, so that by the facts stated therein it may appear that diligent inquiry has been made for the purpose of effecting actual notice.

    ------------------------------
    Curtis Romanowski Esq.
    Senior Attorney - Proprietor
    Metuchen NJ
    (732)603-8585

    Original Message


  • 13.  RE: Out-of-State Service

    Posted 12-23-2015 05:25 PM

    Probably need to start my Christmas holiday, but, Yes, Virginia, you still need to do one since the service was not done within the State, as anticipated in paragraph (a).

    Here's (b):

    (b) Obtaining In Personam Jurisdiction by Substituted or Constructive Service.

    • (1) By Mail or Personal Service Outside the State. If it appears by affidavit satisfying the requirements of R. 4:4-5(b) that despite diligent effort and inquiry personal service cannot be made in accordance with paragraph (a) of this rule, then, consistent with due process of law, in personam jurisdiction may be obtained over any defendant as follows:

    ------------------------------
    Curtis Romanowski Esq.
    Senior Attorney - Proprietor
    Metuchen NJ
    (732)603-8585

    Original Message