In re Malm v. Villegas – Process of Service


In civil litigation, process of service is the foundation that gives appropriate notice of legal action to the defendant. It is required for the court to establish personal jurisdiction over the defendant, and also allows the other party to respond.

It’s a key step in any lawsuit, and is often done without any issue or fanfare.

Sometimes, however, a defendant may not be easy to locate or serve. In these instances, it’s important your legal team make every effort to complete the task in a timely manner. There can be alternatives – such as service by publication – if defendant is actively avoiding process of service.

However, that is a last resort, and, as the case of In re Malm v. Villegas illustrates, it may not be recognized as valid. Such a scenario might lead to a default judgment in your favor if defendant never responds, but courts are reticent to hand down such judgments.

The Malm case, before the Colorado Supreme Court, began with an automobile accident that occurred in 2002. Plaintiff commenced her personal injury action just one month shy of the expiration of the statute of limitations (two years and 11 months after the crash).

Timely process of service is expected in any case. However, by the following autumn, plaintiff still had not found and personally served defendant. She moved for permission to establish quasi in rem jurisdiction by attaching defendant’s insurance company as defendant and accomplishing service through publication.

Judge granted her motion and plaintiff demonstrated service by publication. However, insurer filed a motion to dismiss for lack of personal jurisdiction, the court found the quasi in rem jurisdiction an improper way to establish jurisdiction over defendant’s property. However, the court still allowed plaintiff additional time to attempt personal service.

One year later, plaintiff filed a status report indicating she still was not able to locate and personally serve defendant.

The judge granted a request to classify the case as inactive and closed. Plaintiff indicated she would continue attempts to locate defendant and notify the court when she had done so.

For five years, the case remained inactive. Then, in 2013, plaintiff moved to re-open the case, saying her attorneys had received a lead regarding defendant’s out-of-country whereabouts, located and served her in that country.

Motion to re-open was granted that summer.

However, defendant asked the court to reconsider the move to re-open, alleging plaintiff failed to make reasonable efforts after the case was closed to locate her. This resulted in failure to diligently prosecute.

The trial court disagreed, and found that while the amount of time that had passed and lack of activity on record would indicate a failure to prosecute, plaintiff had in fact made numerous efforts – including hiring several private investigators – to further prosecution.

On appeal, state supreme court reversed. The court noted substantial delay in serving notice puts the opposing party at a “severe disadvantage” in terms of preparing for litigation.  While there are circumstances under which process of service timelines can be stretched, this case did not warrant such exception. The court indicated service may be extended where there is evidence a defendant actively impeded service, but not where plaintiff simply cannot find defendant – no matter how extensive efforts to do so might have been. In this case, the court ruled, the delay was unreasonable.

Our experienced Naples injury lawyers have the resources to help clients at each stage of litigation. This is especially important in a place like South Florida, which has a large number of snow birds, foreign visitors and transient residents.

If you have been injured in an accident, contact the Hollander Law Firm at (561) 347-7770 for a free and confidential consultation. There is no fee unless we win.

Additional Resources:

In re Malm v. Villegas , Jan. 20, 2015, Colorado Supreme Court

More Blog Entries:

Study: Florida Riskiest State for Crash Victims, Jan. 23, 2015, Naples Car Accident Lawyer Blog