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Posey v. Searcy

December 24, 2008


The opinion of the court was delivered by: Michael M. Baylson, U.S.D.J.


Baylson, J.

I. Background

A. Facts and Procedural History

Plaintiff filed her Complaint in this Court on October 15, 2007 alleging injuries that arose out of a motor vehicle accident on May 9, 2006 on I-95 in Philadelphia. (Doc. No. 1.) Plaintiff named as Defendants Joseph Searcy ("Searcy"), alleged to have been the driver of the truck that caused Plaintiff's injuries, and J.B. Hunt Transport Inc. ("Hunt"), Searcy's employer and owner of the vehicle at the time of the accident. Searcy and Hunt have since terminated their relationship.

There is no dispute concerning diversity jurisdiction. The case has been proceeding on the merits as to Hunt. Plaintiff claims she served Searcy, but he has not responded, and Hunt has challenged the service of process on Searcy. Hunt argues that it would be prejudiced if it has to stand trial with Searcy as a served but non-appearing party. However, Hunt does not detail the extent or form of the prejudice it expects would result.

On April 24, 2008, Plaintiff filed an Affidavit of Service as to Searcy, which stated that Plaintiff first attempted service by certified mail on January 17, 2008 and then sent Searcy a copy of the Summons and Complaint on February 26, 2008 by regular mail after the receipt for the certified mail was returned with the mark "unclaimed." (Doc. No. 14.) Hunt filed a Motion to Strike Plaintiff's Affidavit of Service, (Doc. No. 15), on May 14, 2008, asserting that Plaintiff's attempts to serve Searcy were inadequate under the Pennsylvania Rules of Civil Procedure. Nearly sixty days after Hunt's Motion, on July 25, 2008, Plaintiff filed a responsive memorandum, (Doc. No. 18), in which she alleged that she had made a good faith effort to serve Searcy and requested the Court to direct service under Pennsylvania Rule 430. Hunt replied on August 11, 2008. (Doc. No. 22.)

Since the filing of these documents, the Court encouraged the parties to reach an agreement regarding the service of Mr. Searcy, but the parties have been unable to agree to a stipulation. The Court then requested additional briefing from the parties. (See Doc. No. 37.) Along with her additional brief, Plaintiff also filed on December 8, 2008 a formal Motion for a Special Order Directing Service by Publication under Pennsylvania Rule 430. (Doc. No. 39.) Plaintiff has explained that she did not file such a motion earlier because the parties were engaged in negotiations to stipulate as to the service of Searcy and the relationship between Searcy and Hunt, and the parties were also engaged in settlement negotiations. Defendant has responded to that motion and asserts Plaintiff has not met the requirements for directed service by publication under Rule 430. (Docs. Nos. 40, 41.)

B. Plaintiff's Attempts at Service of Process on Defendant Searcy

In the initial response to Defendant's Motion and then in the brief replying to the Court's request, Plaintiff outlined her efforts to serve process on Searcy. On October 16, 2007 Plaintiff first sent the process by certified mail to Searcy's last known address, as provided by his employer, Hunt, and listed on the Pennsylvania accident report. The record is ambiguous as to any response Plaintiff received regarding this first attempt at service. However, Plaintiff apparently was not satisfied, as she inquired into Searcy's whereabouts from the United States Postal Service, pursuant to the Freedom of Information Act, on November 13, 2007. On December 6, 2007, the Postal authorities responded that they had no change of address on file. (See Doc. No. 18, Exs. C and D.)

Next, on January 4, 2008, Plaintiff hired Edward Koerper, Jr., an accident investigator, to research the whereabouts of Searcy. According to Investigator Koerper, he used a number of identifiers, including Searcy's date of birth and social security number, to identify several possible addresses for Searcy. (See Doc. No. 18, Ex. E.) Investigator Koerper provided a "best address" as well as two additional business addresses for Searcy. (Id.) On January 17, 2008, Plaintiff attempted service by certified mail, return receipt requested, at the "best address" (Doc. No. 18, Ex. F), but that receipt was returned as "unclaimed." Plaintiff then sent service to the same address via regular mail on February 26, 2008 and that mail was not returned. (See Pl.'s Affidavit.) On May 22, 2008, Plaintiff also attempted service via certified mail return receipt requested at the two business addresses (Doc. No. 18, Exs. G and H); it appears that one of those was returned as "unclaimed" and the other was returned as "addressee unknown." (Doc. No. 22, Ex. A.)

II. Parties' Arguments

In its Motion to Strike and reply brief, Hunt asserts that Plaintiff has not followed the correct procedure in serving Searcy under the applicable state rules of civil procedure, namely Pennsylvania Rules of Civil Procedure 403, 404, and 430. Specifically, Hunt argues that under Rule 403, Plaintiff erred in serving Searcy by regular mail after the result of service by certified mail was the return to Plaintiff of the receipt marked "unclaimed."

Plaintiff responds that she acted in good faith in trying to locate and serve Defendant Searcy. In the recent Motion for directed service under Rule 430, Plaintiff suggests that her exhaustive efforts entitle her to special consideration and warrant the Court authorizing service by other means. Hunt responds that Plaintiff's efforts did not amount to good faith under Rule 430 ...

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