United States District Court, M.D. Georgia, Columbus Division
D. LAND, CHIEF U.S. DISTRICT COURT JUDGE
Owners Insurance Company filed a motion for service by
publication on Defendant Betty Stokes. For the reasons set
forth below, the motion (ECF No 10) is granted.
Federal Rule of Civil Procedure 4(e)(1), an individual
“may be served in a judicial district of the United
States by . . . following state law for serving a summons in
an action brought in courts of general jurisdiction in the
state where the district court is located or where service is
made.” Georgia law permits service by publication
“[w]hen the person on whom service is to be made
resides outside the state, or has departed from the state, or
cannot, after due diligence, be found within the state, or
conceals himself or herself to avoid the service of the
summons.” O.C.G.A. § 9-11-4(f)(1)(A). If the Court
finds that a claim exists against the defendant to be served
and that the defendant is a necessary or proper party, the
Court “may grant an order that the service be made by
the publication of summons.” Id.
Owners Insurance seeks a declaration regarding its
obligations under a car insurance policy it issued to Terrell
Anderson. In an underlying personal injury lawsuit, Charles
Mims alleges that Stokes, while driving Anderson's car,
caused a wreck that resulted in injuries to Mims. Owners
Insurance claims in this declaratory judgment action that it
has no duty to defend or indemnify Stokes (or Anderson) in
the underlying lawsuit. The Court finds that a claim exists
against Stokes and that she is a necessary or proper party in
next question is whether Owners Insurance presented enough
evidence to show that it could not locate Stokes despite the
exercise of due diligence. Before ordering service by
publication, the Court must find that service by publication
satisfies due process; “[w]here the defendant's
address is unknown, service by publication is
constitutionally permissible upon a showing that reasonable
diligence has been exercised in attempting to ascertain the
defendant's whereabouts.” McDade v.
McDade, 435 S.E.2d 24, 26 (Ga. 1993).
on the affidavits submitted by Owners Insurance and the
representations counsel made at the telephone conference on
the motion for service by publication, Owners Insurance took
the following actions to locate Stokes. First, Owners
Insurance attempted to serve Stokes personally at her last
known address, 154 Wendell Drive, Columbus, Georgia 31903.
The resident at that address, who is Stokes's brother,
informed the process server that he had not seen or heard
from Stokes in more than a year. Owners Insurance then asked
Anderson about Stokes's whereabouts, but he had lost
contact with Stokes and did not know where to find her.
Owners Insurance received some information suggesting that
Stokes may live in Texas, but Owners Insurance could not
locate her. Finally, Owners Insurance ran a
“skiptrace” on Stokes but could not find current
contact information for her. From this evidence, the Court is
satisfied that Owners Insurance exercised reasonable
diligence in trying to ascertain Stokes's whereabouts.
The Court therefore finds it appropriate to order service on
Stokes by publication in accordance with the procedures set
forth in O.C.G.A. § 9-11-4(f)(1)(C).
Court orders Owners Insurance to coordinate publication of
the notice on Stokes in each newspaper in which Owners
Insurance wishes to have the notice published. Owners
Insurance shall determine the procedures for placing the
notice in each newspaper. For each newspaper, Owners
1. Prepare for the Clerk of Court's signature a cover
letter to the publisher providing instructions for publishing
the notice in accordance with the requirements of O.C.G.A.
2. Provide to the Clerk a check made out to the publisher for
the cost of publishing the notice; and
3. Prepare and submit to the Clerk a proposed notice to be
published. The proposed notice shall comply with the
requirements of O.C.G.A. § 9-11-4(f)(1)(C).
Owners Insurance provides the cover letter(s), check(s), and
proposed notice(s) to the Clerk, the Clerk shall submit these
items to the publisher(s) and cause publication of the
notice(s) and shall note on the docket when this task is
complete. Once publication is complete, Owners Insurance
shall obtain and submit to the Court a publisher's
affidavit demonstrating that the notice(s) was published in
accordance with O.C.G.A. § 9-11-4(f)(1)(C).
fifteen days of the date of this Order, the Clerk shall send,
via first class mail, the following items to Betty Stokes at
her last known address (154 Wendell Drive, Columbus, Georgia
1. A copy of the published ...