Dec. 15, 2014 – Service of process was fundamentally defective because the plaintiff sent pleadings to the wrong address, a state appeals court has ruled, rejecting the argument that the typographical error was only a technical defect.
In 2013, William O’Donnell tried but failed to personally serve the defendant, Roxanne Kaye, so he attempted service by publication and mailing. He published a legal notice and mailed an authenticated copy of the summons and complaint. The address on the mailing indicated “W138” instead of “W136” and said “Avenue” instead of “Drive.”
Kaye filed an answer and later moved to dismiss for insufficient service of process. She said she never received a copy of the complaint at her home address, but made a copy at the county courthouse. O’Donnell said the typo did not prejudice Kaye.
But the circuit court ruled that that error was “substantive,” amounting to a fundamental defect that deprived the court of personal jurisdiction. In O’Donnell v. Kaye, 2013AP2615 (Dec. 3, 2014), a three-judge panel for the District II Appeals Court the appeals court affirmed, concluding that “close enough is not good enough.”
“Service by publication and mailing cannot establish personal jurisdiction where one of the key steps – mailing to the defendant’s known address – was not carried out,” wrote Chief Appeals Court Judge Richard Brown for the panel.
Brown noted that a mailing is excused only if the party’s address is not known and cannot be learned through reasonable diligence, but O’Donnell knew Kaye’s address.
“It might be a different case if the mail were sent to the wrong address, but somewhere along the line, an error by the postal service, shenanigans by the defendant or some other third party interfered with delivery to the defendant,” Judge Brown noted.