Plaintiff used reasonable diligence prior to service by publication, appeals court holds

By Joe Forward, Legal Writer, State Bar of Wisconsin

April 8, 2010 – Plaintiff’s unsuccessful attempts to serve process on the defendant reached the required standard of “reasonable diligence” to allow service by newspaper publication, the Wisconsin Court of Appeals held yesterday.

Wis. Stat. section 801.11 states that if service of process is not possible in person or by leaving a copy of the summons at the defendant’s usual place of abode, “service may be made by publication …” Section 985.02 allows publication by newspaper if the newspaper is “likely to give notice in the area or to the person affected.”

In Loppnow v. Bielik, 2009AP000747 (April 7, 2010), the appeals court reversed the Waukesha County Circuit Court and remanded the case for reinstatement of plaintiff’s claims after finding enough evidence that plaintiff exercised “reasonable diligence” in attempting to serve process on defendant in Florida before publishing notice in a local newspaper.

Attempts to serve process

On June 13, 2008, Kevin Loppnow filed civil claims against Steven Bielik after a physical altercation in which Bielik pled to an amended charge of misdemeanor battery. 

Loppnow’s attorney made unsuccessful attempts to obtain Bielik’s address from Bielik’s attorney. Loppnow was also unsuccessful in his attempts to locate defendant by requesting depositions from Bielik’s parents, sending six or seven summonses to a Florida address obtained through a “locate-and-research tool” called Accurint, and hiring an investigative service provider to conduct local, statewide, and national database searches. Upon hiring a second investigative service in Orlando, Loppnow’s attorney obtained a listed address in Marathon, Fla. (part of the Florida Keys) and two addresses in Lutz, Fla. (Tampa area).  Loppnow’s attorney made unsuccessful attempts to serve Bielik at all addresses.

In September 2008, Loppnow’s attorney mailed a copy of the summons to the listed Marathon address and published notices in the Key West Citizen newspaper consecutively for three weeks.  However, a National Student Clearinghouse database search identified Bielik as a full-time student at the University of Central Florida in Orlando.

Bielik filed a motion for summary judgment in circuit court on grounds that the court lacked personal jurisdiction due to “insufficiencies in the service of process.” See Id. at ¶ 8. The circuit court ruled in favor of Bielik and Loppnow appealed.

Determining if the plaintiff’s efforts were “reasonably diligent”

The appeals court reversed the decision, concluding that “the facts of record support a determination that Loppnow exercised reasonable diligence in attempting personal service on Bielik under [section 801.11]” and that “Loppnow’s substituted service by publication complied with the requirements of [section 985.02].”

In determining whether Loppnow was “reasonably diligent” in attempting service of process upon Bielik, the court noted that case law defining “reasonable diligence” is sparse but stated that section 801.11 “requires the pursuit of any ‘leads or information reasonably calculated to make personal service possible.’” Id. at ¶ 10 (citing West v. West, 82 Wis. 2d 158, 166, 262 N.W.2d 87 (1978)). To determine whether Loppnow met this test, the court discussed West and two other cases[1] in which the plaintiff did not fulfill the “reasonable diligence” requirement. 

The court went on to discuss another case[2] in which the plaintiff’s efforts did rise to a level of “reasonable diligence” and noted that “[t]he guiding principle in these cases is that, when pursuing any leads or information reasonably calculated to make personal service possible, the plaintiff must not stop short of pursuing a viable lead−or in other words, stop short ‘of the place where if [the diligence] were continued might reasonably be expected to uncover an address … of the person on whom service is sought.’” Id. at ¶ 15 (citing Haselow, 212 Wis. 2d at 589).

The court noted that Loppnow attempted service at every known address and made inquiries as to other addresses with no success.  The court also noted that Loppnow’s attorney “narrow[ed] his search based on all the information to him, including that Bielik would be attending the University of Central Florida in the fall.” Id. at 21.  Thus, the court held that Loppnow exercised reasonable diligence under section 801.11. Id. The court rejected Bielik’s argument that Loppnow failed to undertake a search in the Orlando area since Loppnow hired an Orlando investigator for the purpose of locating Bielik’s student address. Id.

Substitute service by publication

Concluding that Loppnow was “reasonably diligent,” the court went on to determine whether notice by newspaper publication was sufficient to comply with section 985.02 – that is, whether notice was “published in a newspaper likely to give notice in the area or to the person affected.”

Bielik argued that publication of service in the Key West Citizen was not sufficient because it did not extend to the Orlando area.  Noting that Accurint, the two investigative agencies, and the National Student Clearinghouse listed the Marathon address, the court concluded that publishing in that area would be “likely to give notice” to Bielik. Id. at ¶ 23. The appeals court reversed and remanded the case for reinstatement of Loppnow’s claims.