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# 68 - Service of summons by mail

# 68 - Service of summons by mail

LDG Monograph # 68                         September, 2007 -- ver. 1.7

SERVICE OF SUMMONS BY MAIL

By Lawrence D. Gorin, Attorney at Law, Beaverton, Oregon

    The general rule regarding the method by which service of a summons is accomplished is set forth in ORCP 7 D(1), which declares that “summons shall be served, either within or without this state, in any manner reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend.

    ORCP 7 D(2)(a), (b), (c) and (d) specifies four different methods by which service of summons may be accomplished, including "service by mail."  ORCP 7 D(2)(d).  However, pursuant to
ORCP 7 D(2)(d)(i), service of summons by mail is permissible only
when such service is "required or allowed by this rule or by statute.ORCP 7 D(2)(d)(i) goes on to explain that such service (when required or allowed) is accomplished  by mailing true copies of the summons and the complaint to the defendant by first class mail AND by any of the following: certified, registered, or express mail with return receipt requested.

    The ORCP rule that that allows an individual defendant
(as distinguished from a defendant that is a corporation, partnership, public body, etc.) to be served with summons by mail is ORCP 7 D(3)(a)(i).

    Specifically, ORCP 7 D(3)(a)(i) describes four specific and particular methods for service of summons on an individual defendant
each of which may be used without need of prior court authorization:   In sum, the rule says that an individual defendant may be served:
        (1) by personal delivery of true copies of the summons and the complaint to such defendant or other person authorized by appointment or law to receive service of summons on behalf of such defendant; or
        (2)  by substituted service; or
        (3)  by office service
        (4)  Service may also be made by a mailing made to the individual defendant in accordance with paragraph (2)(d) of this section provided that (a) the defendant is neither a minor nor an incapacitated person and (b) the defendant signs a receipt for the certified, registered, or express mailing, in which case service shall be complete on the date on which the defendant signs a receipt for the mailing.

  
    In the much-cited case of Baker v. Foy, 310 Or 221, 797 P2d 349 (1990), the Oregon Supreme Court established a two-step methodology for assessing the “adequacy of service” under ORCP 7 D(1):
    
    First, the court must determine if the method in which service of summons was made was one of the particular methods described in ORCP 7 D(2), specifically permitted for use upon the particular defendant by ORCP 7 D(3), and accomplished in accordance with ORCP 7 D(2).  If so, the service is “presumptively adequate,” i.e., it is presumed to be service reasonably calculated, under all the circumstances, to apprise defendant of the pendency of the action and to afford defendant a reasonable opportunity to appear and defend.  Such service, unless the defendant overcomes the presumption, will be deemed effective.   No further court inquiry is needed.

    Second, if “presumptively adequate service” is not effected (or if the defendant rebuts the presumption of valid service), the court must then consider whether the manner of service employed by plaintiff satisfies the “reasonable notice” standard of “adequate service” set forth in ORCP 7 D(1).  If that inquiry is answered in the affirmative, service will be deemed valid, (and this will be true notwithstanding the absence of defendant’s receipt of actual notice).  In essence, regardless of method used for service of summons, if it satisfies the standard established by ORCP 7 D(1) it will be deemed as adequate and effective.

   As explained in Davis Wright Tremaine, LLP v. Menken, 181 Or App 332, 45 P3d 983 (2002), the Baker v. Foy analysis recognizes that under Oregon law the determination of “adequacy of service” does not focus on whether the defendant received actual notice of the pendency of the action.  Rather, the focus is on the means employed by plaintiff to effect service.  Thus, regardless of whether the defendant ever actually received notice, the ultimate question is whether the plaintiff’s efforts to effect service were reasonably calculated, under the totality of the circumstances known to the plaintiff at the time of service, to apprise the defendant of the pendency of the action.  “[U]nder Oregon’s sufficiency of service rules and related jurisprudence, actual notice is, essentially, irrelevant.”  181 Or App at 338-339, citing Jordan v. Wiser, 302 Or 50, 60, 726 P2d 365 (1986) (actual notice cannot make service adequate under ORCP 7 if the summons is not served “in a manner reasonably calculated to apprise the defendant of the existence and pendency of the action against him”).  

Service by mail via U.S. Postal Service
     Service by mail on a defendant who is an individual will be deemed as “presumptively adequate” if the summons was sent “by first class mail and by any of the following: certified or registered mail, return receipt requested, or express mail,” ORCP 7 D(2)(d)(i), provided however, that “the defendant signs a receipt for the certified, registered or express mailing” (in which case service shall be complete on the date on which the defendant signs the receipt), ORCP 7 D(3)(a)(i).  If both conditions are satisfied (i.e., mailing was made in the prescribed manner and the defendant has signed the return receipt), the service by mail is “presumptively adequate” and no further court inquiry is needed.  


    However, in the absence of the defendant’s signature on the return receipt, service by mail will not be presumptively adequate even though the mailing was made in accordance with ORCP 7 D(2)(d)(i).  In such case, the second prong of the Baker v. Foy analysis comes into play, i.e., did the manner of service employed by plaintiff (regardless of method used) satisfy the ‘reasonable notice’ standard of adequate service set forth in ORCP 7 D(1)?   If that inquiry is answered in the affirmative, service by mail will be deemed valid and effective.  

        In Davis Wright Tremaine, LLP v. Menken, service by mail was undertaken in the manner prescribed by ORCP 7 D(2)(d)(i):  first class mail and certified mail, return receipt requested.  Defendant received the first-class mailing but refused to accept the certified mailing.  The postal service marked the certified mailing “refused” and returned it to plaintiff.  Plaintiff then filed with the court a return of service and included the certified mailing that was marked by the Post Office as being “refused.” Defendant thereafter failed to timely file an appearance in the case.  Plaintiff then obtained a judgment by default.  Defendant subsequently moved to set aside the judgment.  Trial court denied the motion (thus upholding the adequacy of the service by mail on defendant).  Defendant appealed.  

    On appeal, plaintiff acknowledged that it failed to effect “presumptively adequate service” on defendant because the defendant had not signed the receipt for the certified mail, as required by ORCP 7 D(3)(a)(i).  However, plaintiff argued that the measures that it did take     mailing the summons and complaint to defendant via both first-class mail and certified mail, return receipt requested --- were, in the totality of the circumstances, “reasonably calculated * * * to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend,” thus satisfying the “adequate notice” standard of  ORCP 7 D(1) and the second prong of the Baker v. Foy analysis.  

    The appellate court disagreed and reversed the trial court (thus rejecting the trial court’s determination that the service by mail on defendant that had been “refused” was nonetheless adequate).  Said the appellate court:  “ORCP 7 D(1) focuses not on the defendant’s subjective notice but, instead, on whether the plaintiff’s conduct was objectively, reasonably calculated to achieve the necessary end.  That is, regardless of whether the defendant ever actually received notice, were the plaintiff’s efforts to effect service reasonably calculated, under the totality of the circumstances then known to the plaintiff, to apprise the defendant of the pendency of the action?”  181 Or App at 339.  

    The court pointed out, inter alia, that neither the first-class envelope nor the certified envelope bore any notation that would alert the recipient that it contained copies of a summons and complaint---or, for that matter, any important legal documents --- and, further, that the certified mailing was sent unrestricted.  Thus, “anyone with access to defendant’s post office box could accept or reject the certified mailing.”  The court then pointed out that had the mailing been done by certified mail with restricted delivery, “only the addressee can accept (or refuse) the certified mailing.”  181 Or App at 340.  Under these circumstances plaintiff’s attempted service by mail --- made by first class and certified mailing, return receipt requested, but sent “unrestricted” --- did not comport with the “reasonable notice” requirement of ORCP 7 D(1).

    In sum, the service by mail was not “presumptively adequate” under the first element of the Baker v. Foy analysis due to the defendant’s not having signed a receipt acknowledging acceptance of the certified mail.  Further, because the plaintiff failed to send the certified mail by restricted delivery, coupled with the fact that the certified mailing was refused, the court concluded that the manner of service was not “reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend” and, therefore, rendered plaintiff’s attempted service inadequate under the second element of the Baker v. Foy analysis.

    Lesson to be learned:  “[A]s a general rule, service by mail on an individual must be by restricted delivery---i.e., only the person being served can either accept or refuse the mailing---to satisfy the reasonable notice standard of ORCP 7 D(1).”  Davis Wright Tremaine, 181 Or at 341.  If not sent by restricted delivery, there is no assurance that the defendant will ever see the papers.  And without such assurance, service by mail, in the absence of a mailing receipt bearing the defendant’s signature, will not satisfy the reasonable notice standard of ORCP 7 D(1).  

    Practice tip:  When undertaking service of summons by mail as allowed by ORCP 7 D(2)(d)(i), in addition to sending the certified mail as “restricted delivery” (so that only the addressee will be able to either receive or reject the mailing), it is advisable to boldly note  “LEGAL SUMMONS AND COMPLAINT ENCLOSED” (or words to that effect) on the front side of both the first class and certified mail envelopes.  By following this procedure, the service by mail --- even if refused by defendant and therefore not meeting the “presumptively adequate” standard  --- will most likely nonetheless be deemed as satisfying the “reasonable notice” standard of “adequate service” set forth in ORCP 7 D(1), thus meeting the second prong of the Baker v. Foy analysis.

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LAWRENCE D. GORIN
Attorney at Law
6700 S.W. 105th Ave., Suite 104
Beaverton, Oregon 97008
Phone:  503-716-8756
Fax:    503-646-1128
E-mail:  LDGorin@pcez.com
Website: http://ldgorin.justia.net/index.com