Burton v. Krueger

Citations: 165 Or. App. 460; 997 P.2d 868; 2000 Ore. App. LEXIS 192Docket: 9704-02562; CA A101860

Court: Court of Appeals of Oregon; February 8, 2000; Oregon; State Appellate Court

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ORCP 7 mandates personal service of a defendant prior to other service methods. The trial court interpreted personal service as applicable not only at the defendant's home but also anywhere the defendant could reasonably be located. In this case, the plaintiff failed to adequately meet this requirement, leading to the court granting the defendant's summary judgment motion. The facts presented were viewed favorably to the plaintiff, who had been injured in an automobile accident on April 1, 1995, and filed a complaint against the defendant two years later. The plaintiff attempted personal and substituted service on 16 occasions at the defendant’s residence, including an instance where the defendant's daughter confirmed the address and mentioned that the defendant's husband was home but asleep. However, the process server did not inquire further about the defendant's whereabouts from the daughter or neighbors.

In May 1997, the plaintiff filed for alternative service methods due to the impending statute of limitations and subsequently mailed the summons and complaint to the defendant's address and served the Motor Vehicles Division (MVD). The defendant moved for summary judgment, arguing that the plaintiff had not exhausted all personal service options as required by ORCP 7 D(3). The trial court ruled that the plaintiff's attempts did not satisfy the requirement for personal service, as she had not made sufficient efforts to locate the defendant outside of her home. Thus, the court determined that the plaintiff could not utilize MVD service under ORCP 7 D(4)(a)(i) or 7 D(6)(a), ultimately affirming the defendant's motion for summary judgment. ORCP 7 D outlines the methods for serving a summons, emphasizing that personal service must be attempted first.

ORCP 7 D(4)(a)(i) allows a plaintiff to serve a defendant in motor vehicle accident cases through the Motor Vehicle Division (MVD) if traditional service methods outlined in ORCP 7 D(3) fail. A defendant is deemed "cannot be served" if the plaintiff has unsuccessfully attempted all three service methods or knows that service cannot be achieved. The current appeal revolves around whether the plaintiff exhausted the service methods before using MVD service. The plaintiff argues that the trial court mistakenly required personal service attempts beyond the defendant’s residence, while the defendant contends the plaintiff did not attempt office service nor demonstrate knowledge of its unavailability. The court emphasizes that knowledge can be actual or constructive, requiring reasonable efforts to find information about the defendant's whereabouts. The plaintiff's checks of limited sources, which were unlikely to yield relevant employment information, failed to satisfy the requirement. Furthermore, the plaintiff neglected to seek information from potentially helpful sources, like the defendant's family or neighbors, which the court recognized as reasonable avenues in similar cases.

The sources referenced in Mitchem are illustrative rather than mandatory, yet in this case, the plaintiff failed to inquire with neighbors and the defendant's daughter about the defendant's employment, which could have provided useful information. Unlike the Carlson case, where the plaintiff had no logical sources available, here the plaintiff knew the defendant's residence and that the defendant was likely employed during the day, suggesting other avenues for service should have been explored. The court concludes that the plaintiff did not reasonably determine that office service was impossible. The case applies the 1995 version of ORCP 7, which stipulates that if a summons is served within 60 days of the complaint filing, it is considered timely for statute of limitations purposes. Most service attempts by the plaintiff occurred during typical work hours. The defendant demonstrated that her work address could be found with minimal effort by checking her credit report, although this evidence was not relied upon by the court for its ruling. The plaintiff did not contest that the defendant received the summons and complaint by mail after May 30, 1997, nor did she argue about the legitimacy of service by mail under ORCP 7 D(6). The plaintiff's assertion centered on meeting the requirements for MVD service, which can occur if the individual maintains a business office. The key issue is whether the plaintiff made reasonable efforts to gather information from logical sources before deciding against office service, rather than whether those efforts would have succeeded. The court determined that without reasonable attempts to explore alternative methods of service, the plaintiff could not utilize MVD service, and thus did not evaluate the adequacy of her personal service efforts.