Cunningham v. Montes

Montes owns houses in California and in Wisconsin. After filing suit, Cunningham arranged for service of process at the Wisconsin address. No one answered the door. The process server called Montes, who refused to provide his current location. The judge authorized service by publication. Cunningham published notice in periodicals that circulate only in the Midwest. When Montes did not answer, the court entered a default. After learning about the case, Montes unsuccessfully asked the court to set aside the default. The judge wrote that “Montes has rather persistently sought to evade service in both California and Wisconsin" but did not describe what Montes has done to evade service. The Seventh Circuit vacated. Wis. Stat. 801.11(1), states that when “reasonable diligence” has not succeeded in producing service in hand, a court may authorize service by publication. The court did not explain why the “reasonable diligence” standard was satisfied when service was attempted at only one of a defendant’s known residences. Cunningham knew Montes’s California address. Wisconsin requires a plaintiff who knows or readily can learn that a defendant has multiple addresses to attempt to serve the defendant at each address. Given the lack of any effort to serve Montes in California, however, it would be difficult to make a finding that he is evading service in this case. View "Cunningham v. Montes" on Justia Law