179 A.3d 297
D.C.2018Background
- Southern Hills owned subsidized multi-family housing; Anderson was a tenant and was arrested for serious crimes in September 2011, violating his lease.
- Southern Hills filed a complaint for possession on December 6, 2011 and attempted personal service at Anderson’s apartment on December 13 and December 15, 2011.
- After two failed door attempts, Southern Hills posted the summons and complaint on Anderson’s door and mailed a copy to the same address; no further efforts were made to locate him.
- Anderson did not appear at the possession hearing; a default judgment was entered but later vacated after he moved to set aside for improper service.
- The trial court found posting ineffective because Southern Hills did not make a “diligent and conscientious” effort to locate Anderson given information available (e.g., his criminal case/incarceration); the court dismissed Southern Hills’ case.
- Southern Hills appealed, arguing two personal attempts sufficed under D.C. Code § 16-1502; the appellate court affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether posting the summons satisfied D.C. Code § 16-1502 when the tenant "could not be found" | Southern Hills: two door attempts then posting complied; tenant "could not be found." | Anderson: Southern Hills knew facts (arrest, barring notice) making posting inadequate; landlord had duty to use available leads to locate him. | Posting was ineffective; landlord failed to make diligent and conscientious efforts to locate tenant before posting. |
| What constitutes a "diligent and conscientious" effort to locate a tenant before posting | Southern Hills: no further leads known; two attempts reasonable. | Anderson: landlord should have used readily available public information (criminal docket, DOC) or served counsel/court date. | Landlord must pursue reasonable leads when information exists; mere door knocks were insufficient here. |
| Effect of landlord barring tenant from premises on service efforts | Southern Hills: barring not relevant to adequacy of service. | Anderson: barring made posting more problematic and increased landlord’s duty to locate tenant. | Barring heightened landlord’s obligation to make additional efforts to effect personal service. |
| Due process adequacy of posting as notice in eviction contexts | Southern Hills: posting is permitted by statute if tenant cannot be found. | Anderson: posting is disfavored and raises due process concerns unless diligent efforts shown. | Posting is disfavored; due process requires landlords to use available means reasonably calculated to inform before posting. |
Key Cases Cited
- Frank Emmet Real Estate, Inc. v. Monroe, 562 A.2d 134 (D.C. 1989) (landlord must make diligent and conscientious efforts to find defendant before resorting to posting)
- Edelhoff v. Shakespeare Theater at the Folger Library, Inc., 884 A.2d 643 (D.C. 2005) (posting after two failed attempts was inadequate where landlord had available contact information it failed to use)
- Parker v. Frank Emmet Real Estate, 451 A.2d 62 (D.C. 1982) (posting is the least favored form of service and should be used only after other methods fail)
- Jones v. Hersh, 845 A.2d 541 (D.C. 2004) (posting is disfavored and raises due process concerns)
- In re N.N.N., 985 A.2d 1113 (D.C. 2009) (method of service is reviewed de novo)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (due process requires notice reasonably calculated to inform interested parties)