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Maine Court Sounds Death Knell for Service by Publication

By Matthew A. Goldberg, Litigation News Associate Editor – May 12, 2009

With vastly declining newspaper readership and the ever-increasing proliferation of Internet-based communication, service by print publication—a longstanding safety net for plaintiffs’ attorneys unable to successfully serve defendants through other means—may no longer be a viable option.

Background of Gaeth v. Deacon
The Supreme Judicial Court of Maine, in Gaeth v. Deacon [PDF], earlier this year vacated a default judgment in excess of $100,000 due to the court’s concern that plaintiff’s service on the defendant by publication in a weekly county newspaper violated the defendant’s due process rights to receive notice of the lawsuit.

The suit sought damages based upon an alleged assault that had occurred two years before the action was filed. The parties, Gaeth and Deacon, had attended Maine’s Colby College together. In 2002, an incident occurred during which Deacon allegedly drank excessive amounts of alcohol, punched Gaeth in the face, and broke his nose. By the time Gaeth filed suit, Deacon no longer lived in Maine but in Cambridge, Massachusetts.

Gaeth got Deacon’s Cambridge address from Colby’s alumni association and had the county sheriff make numerous unsuccessful attempts to serve Deacon personally. Gaeth then moved the trial court for an order allowing service by publication. The court granted the motion, allowing Gaeth to serve Deacon by publishing a notice in a weekly county newspaper in Maine for three consecutive weeks. The court also required Gaeth’s counsel to mail Deacon a copy of the court’s order and the published notice.

Though Gaeth’s counsel mailed notice to Deacon as ordered by the court, both envelopes were returned stamped “return to sender.” One of them had “no forward order on file” written on it. Eventually, the court clerk entered a default judgment against Deacon for $100,000 plus fees and costs.

Almost a year later, Deacon found out about the judgment and filed a motion for relief from judgment, arguing that his constitutional due process rights had been violated by the court permitting service to be accomplished by publication in a small county newspaper in a state in which Deacon had not lived since leaving Colby College.

The trial court denied Deacon’s motion, leading to an appeal to Maine’s highest court. The Supreme Judicial Court of Maine agreed with Deacon, vacated the judgment, and remanded the case. The decision raises the issue of whether print publication provides adequate notice.

Future of Service of Process
“Service by publication is becoming less likely to actually provide notice and, thus, less likely to meet the requirements of due process,” says Kim Jessum, Philadelphia, PA, cochair of the ABA Section of Litigation’s Technology for the Litigator Committee.

“In this advanced technological age, it does not seem that providing notices only in local newspapers where the court action is commenced is sufficient,” Jessum observes.

“The Internet provides many more sources to track people down than have ever existed before—including email, blogs, and social networking sites like Facebook, MySpace, and LinkedIn—making publication notice in newspapers even less of a necessity,” observes Gregory Shelton, Seattle, cochair of the Section’s Technology for the Litigator Committee.

The Gaeth court based its decision on very similar reasoning. The court relied on numerous U.S. Supreme Court cases, including Mullane v. Central Hanover Bank & Trust Co., as support for its position regarding the due process component of service of process.

When due process and the adequacy of notice of suit are at issue, the ultimate question is “whether the notice or attempted notice was reasonably calculated to give a defendant notice of the pendency of the action,” the Gaeth court opinion says. In light of recent societal changes, “service by publication in a newspaper is now a last resort that a party should attempt only when it has exhausted other means more likely to achieve notice,” the opinion says.

Unresolved Issues
A key issue the Gaeth case leaves unresolved, however, is “what, specifically, is required before a ‘last resort’ approach such as publication becomes justified,” notes Kent A. Lambert, New Orleans, LA, cochair of the Section’s Pretrial Practice & Discovery Committee (and regular contributor to Litigation News).

“Absent explicit guidance, which is seemingly hard to give in an era of rapidly developing technology and Internet evolutions, a plaintiff will have to hold its breath if a decision is made to rely on notice by publication, because another judge may later dream up, with the benefit of hindsight, some other step that the plaintiff could have tried to locate and serve a defendant before resorting to service by publication,” Lambert observes.

Keywords: Gaeth v. Deacon, service of process, due process, publishing

  • May 15, 2009 – The comment reads too much in to the decision. Footnote 6 suggests that notice in a Waterville or Augusta paper might have been sufficient. Probably a notice in the Boston Globe would have been adequate. The case clearly requires greater efforts to achieve actual notice, but the SJC of Maine has not sounded the death knell of notice by publication


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