Just How Far Must You Go To Serve A Lawsuit Upon a Defendant (Part 2 of a 3 Part Series)

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Trial & Litigation Attorney

Part 1 of this blog series discussed the appeal of a tax sale foreclosure action.

On appeal, defendant contends the trial court erred when it denied its motion. Defendant argued the judgment was void because it was not served with the complaint.

Court’s Legal Analysis

Rule 4:50-1(d) provides the court may relieve a party from a final judgment if it is void. “The decision whether to grant such a motion is left to the sound discretion of the trial court.” However, “a default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice.”

Rule 4:4-4(a)(6) states the primary method of obtaining in personam jurisdiction over a corporation in this State is to personally serve a copy of the summons and complaint:

On any officer, director, trustee or managing or general agent, or any person authorized by appointment or by law to receive service of process on behalf of the corporation, or on a person that the registered officer of the corporation in charge thereof, or, if service cannot be made on any of those persons, then on a person at the principal place of business of the corporation in this State in charge thereof, or if there is no place of business in this State, then on any employee of the corporation within this State acting in the discharge of his or her duties…

If after diligent inquiry a defendant cannot be located and personally service in New Jersey, Rule 4:4-5(a) provides an alternate method of service in actions affecting specific property or any interest therein. Rule 4:4-5(a) states in pertinent part:

(a) Whenever, in actions affecting specific property, or any interest therein, or any res within the jurisdiction of the court,…it shall appear by affidavit of the plaintiff’s attorney…that a defendant cannot, after diligent inquiry as required by this rule, be served within the State, service may, consistent with due process of law, be made by any of the following methods…

(1) personal service outside this State as prescribed by R. 4:4-4(b)(1)(A) and (B); or

(2) service by mail as prescribed by R. 4:4-4(b)(1)(c); or

(3) by publication…; or

(4) as may be provided by court order.

(b) Contents of Affidavit of Inquiry… The affidavit of inquiry shall be made by the inquirer fully specifying the inquiry made, of what persons and in what manner, so that by the facts stated therein it may appear that diligent inquiry has been made for the purpose of effecting actual notice.

In Part 3 of this blog, I will discuss the outcome of this case.

To discuss your NJ trial or litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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