Malachowski v. Doheny

Background

Mark Malachowski filed a second ex parte application—an application made without the other party participating at that stage—for permission to serve the summons on Romona A. Doheny by publication. The application relied on Federal Rule of Civil Procedure 4(e)(1) and California law. The court had previously denied Malachowski's first application because his supporting declaration did not show reasonable diligence in trying to serve Doheny before seeking publication service.

California law permits service by publication when an affidavit satisfies the court that the person cannot, with reasonable diligence, be served by another authorized method. The opinion describes several other methods, including personal delivery, substituted service at a residence or office, service using a notice and acknowledgment, and service by mail to a person outside California.

Court's analysis

The court found that Malachowski's declaration demonstrated reasonable diligence. He hired an investigative service to prepare a comprehensive report concerning Doheny's property and assets. The investigation searched telephone directories, voter registers, real and personal property indexes, and county-record databases. Those efforts led Malachowski to believe that Doheny resided at an address in Milford, Connecticut.

Malachowski also stated that he had attempted to serve Doheny six times at that address. According to his account, the process server encountered suspicious and evasive behavior by residents and observed mail addressed to Doheny near the patio door. The court concluded that these circumstances supported a finding that Doheny was evading service. Malachowski had tried personal and substituted service without success. Although he had not tried service by mail, the court stated that the process server's reports suggested that mail service might also fail.

Ruling

The court authorized Malachowski to serve Doheny by publication under California Code of Civil Procedure section 415.50. It also ordered Malachowski to attempt service by mail under section 415.40. The text provided ends during the sentence stating that publication service must be completed, so the full deadline or additional instruction in that sentence is not available here. The court continued the case management conference from August 23, 2022, to November 1, 2022, at 1:30 p.m., and ordered further information about compliance with the order and the status of service. The order states, "IT IS SO ORDERED."