Travelers Casualty v. Brenneke: How to serve a recalcitrant defendant

Just because your case is complex doesn’t mean that you don’t have to worry about ordinary tasks . . . like serving parties. While The Complex Litigator doesn’t spend much time covering civil procedure issues outside of the class action device, there are exceptions to almost every rule, as with a recent Ninth Circuit decision regarding service of process. In Travelers Casualty and Surety Company of America v. Brenneke (January 9, 2009), the Ninth Circuit examined the nature of “person service” when a defendant studiously avoids service of process.

Describing the disputed service of process, the Court said:

“In connection with its motion to enter default, Travelers submitted the affidavit of Phil Sheldon (“Sheldon”), a process server for Barrister Support Service, which Travelers had hired to effectuate service upon Brenneke. Sheldon stated that he had experienced “significant difficulty” in serving Brenneke in the past, and that he was aware of other process servers’ having experienced similar difficulty. He also indicated that he had successfully served legal documents personally on Brenneke on prior occasions. As to the current matter, he stated that he had made four separate visits to Brenneke’s home between March 17, 2006 and April 2, 2006, attempting to accomplish service. No one answered the door or intercom even though, on more than one occasion, there were two or three vehicles in the driveway. On both his first and third visits to that residence, Sheldon left a note for Brenneke to contact Barrister Support Service, but he did not do so. During what was apparently the fifth attempt, on the evening of April 2, 2006, an adult male answering to the name of Paul Brenneke responded to Sheldon’s ringing on the intercom at Brenneke’s residence. When Sheldon identified himself as a process server, that person responded “Oh great,” but never opened the door. However, Sheldon observed Brenneke standing behind the window next to the front door watching him. Sheldon then held the summons and complaint out towards the window, and announced in a loud voice “You are served.” Sheldon further indicated that Brenneke watched him place the documents on the doorstep. Sheldon thereafter completed a proof of service form.

(Slip op., at p. 166.) I find this sort of behavior very entertaining. Many years ago, I was counsel in a matter where one defendant jumped in a car and locked the door to avoid service. The papers were left on the windshield. I was successful in arguing that “personal service” had been effectuated.

District Court Judge George H. Wu, sitting by designation, delivered the opinion of the Court.  As an aside, the Ninth Circuit has made viewing new opinions very easy through their website with an embedded PDF viewer.