425 P.3d 1108
Ariz. Ct. App.2018Background
- Ruffino sued Lokosky in 2015 for claims arising from her online posts; process server conducted a skip trace locating three possible Scottsdale addresses.
- Server visited Hartford (where Lokosky previously lived), Mountain Spring, and Greyhawk; occupants at Hartford and Mountain Spring denied Lokosky lived there; Greyhawk appeared unoccupied after multiple attempts.
- Superior court denied Ruffino’s motion for alternative service, but Ruffino later served by publication in a rural paper (Gila Bend Sun) without mailing summons to any of the addresses or attempting electronic contact.
- Lokosky learned of the default judgment only after Ruffino obtained control of her website, then moved to vacate the default judgment under Ariz. R. Civ. P. 55(c) and 60(b)(4).
- After an evidentiary hearing the superior court found Ruffino did not use available electronic channels to notify Lokosky, Lokosky was not evading service, and service by publication was improper; the court vacated the judgment as void.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication satisfied Rule 4.1(l) | Ruffino contends publication was permissible after unsuccessful in-person attempts and skip trace results | Lokosky argues Ruffino failed to make reasonably diligent efforts and had available electronic/contact information | Publication was improper: Ruffino did not make reasonably diligent efforts and failed Rule 4.1(l) requirements |
| Whether Lokosky was evading service | Ruffino implies failed attempts showed evasion | Lokosky denies evasion and points to limited/deficient server attempts | Court found no evasion: server made minimal attempts and did not properly identify or leave notice |
| Whether publication was the "best means practicable" for notice (due process) | Ruffino asserts publication sufficed | Lokosky asserts modern channels (email, phone, social media) were more practicable given known contacts | Publication was not the best means practicable; electronic contact or alternative service was preferable |
| Effect of defective service on the default judgment | Ruffino argues judgment should stand | Lokosky argues judgment is void for lack of jurisdiction | Judgment is void; vacated under Rule 60(b)(4) for lack of proper service |
Key Cases Cited
- Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306 (1950) (due-process requirement that notice be the best practicable under the circumstances)
- Koven v. Saberdyne Sys., Inc., 128 Ariz. 318 (1980) (proper service is essential to personal jurisdiction; void judgment if service defective)
- Preston v. Denkins, 94 Ariz. 214 (1963) (serving party must show residence truly unknown; cannot merely allege lack of knowledge)
- Ritchie v. Salvatore Gatto Partners, L.P., 223 Ariz. 304 (2010) (actual notice via publication is less certain; court should consider alternative means)
- Barlage v. Valentine, 210 Ariz. 270 (2005) (two unsuccessful certified-mail attempts do not automatically establish evasion of service)