Non-Service Can Be Frustrating, But It’s Usually Not the End of Your Case
Short answer: your case will most likely continue as normal, it just may take slightly longer to conclude the proceedings.
Process serving is a bit of an odd profession. We’re hired to notify people they are in the midst of a lawsuit. Very few people want to find out that they’ve been sued. It’s not surprising, then, that many defendants go out of their way to avoid being served.
Our process servers are very good at serving even the toughest avoiders, going above and beyond to get your papers served.
There are, however, times when individuals are not served. This could either be because they’re obviously avoiding us (we’ve seen people sitting in their home watching TV and ignoring us at their door) or just a run of near misses. Either way, you will receive a notarized affidavit listing our attempts to serve the papers. This affidavit will include dates and times of every attempt with details of what happened.
You will need to file the affidavit of non-service with the court. The judge will review it to see if we established Due Diligence. Essentially, Due Diligence means a good faith effort was made to deliver the papers to the defendant. Our servers have years of experience and our office staff is trained to make sure all papers meet the general consensus for what constitutes Due Diligence.
If the judge agrees that Due Diligence was achieved, you will usually be given permission to effect service by publication.
This will drag your case out a little bit longer, but you can recover the costs of publication and your case will proceed again in the end.
A common exception to service by publication is with eviction cases. In an eviction, we can post the papers to the defendant’s door if we are unable to deliver them personally. When posted, we will also mail a copy of the documents by certified mail to the defendant. In addition to your affidavit of service, you will also receive an affidavit of mailing.
Service by posting and mailing is a valid means of effecting service in eviction actions and there is no need for service by publication.
Just remember, not serving the defendant does not mean your case is finished. Wisconsin’s laws acknowledge that not every defendant will be served and has ways to move the case forward. If you need any help with your case, please consult a lawyer.