Do Your Due Diligence on Service by Warning Order

When you file a lawsuit, one of the first requirements is that the defendant be properly served. But what happens when this person is unable to be located? The Arkansas Rules of Civil Procedure have a process where you can effectuate service by running a warning order in the newspaper. This warning order notifies the defendant of the lawsuit. As part of the process to obtain a warning order, the party seeking a warning order must attest to the Court that a diligent attempt has been made to serve the defendant.

Lewis v. Johnson

In a recent decision by the Arkansas Court of Appeals, Lewis v. Johnson, 2020 Ark. App. 34 (2020), the Court made clear that this due diligence requirement is more than a mere technicality. In this case, the plaintiff’s process server went to serve the defendant at the last known address eight separate times. The process server received information that indicated the defendant did not live at the address.

The plaintiff then ran a warning order and received a default judgment after the defendant failed to respond. However, the judgment may now be set aside because the Court of Appeals has held that the plaintiff failed to show he made a diligent inquiry in attempting to serve the defendant. The Court emphasized that the plaintiff had a good email address, phone number, fax number, and a post office box for the defendant; but never attempted to contact him through any of those methods.

What is Required?

The key takeaway from this Court of Appeals decision is that (1) you have to make a good faith attempt to actually serve the defendant and (2) the actions you take need to be documented and included in your request for a warning order. Do not ignore reasonable options to notify and/or contact the defendant in an attempt to justify a warning order. It may be easier to receive a default judgment by warning order service, but you want to ensure the judgment will not be set aside.