What if I Cannot Find the Defendant/Respondent?
When you bring a lawsuit before the court, you must give the other party proper notice.
This other party is called the Defendant, and you are the plaintiff. However, in family law cases, the other party is the Respondent, and you are the petitioner.
The defendant is entitled to know about your lawsuit; otherwise, the law infringes on his or her right to defend herself. Yes, this is an important step in due process.
What happens if I cannot find the Defendant or Respondent?
If you cannot find the Defendant, there are other options.
In Texas, you may file a Motion for Substitute Service, aka Motion for Alternate Service.
Before you file this motion, you must prove to the court that you have attempted to serve the Defendant at his usual place of above (home) or employment (work).
If the process server (the person who gives the notice of lawsuit) cannot find him or her there, ask the server for an Affidavit of Service.
The affidavit is a sworn testimony to the court that the process server tried to serve the right person at the right place and time.
It’s called due diligence.
Defendant is Avoiding Service, What Do I Do?
This is also known as evading service. Defendant knows about the lawsuit, but he or she is avoiding the papers. The server sees his car in the driveway, but he refuses to open the door.
Talk to an attorney or an investigator if you need help with finding a Defendant.
Lawsuits are generally dismissed if you cannot find and serve the other party. After all, the Court needs to clear its docket, if you cannot move forward on the case.
There are alternatives.
Same as above, if Defendant is avoid service, ask the server for an Affidavit of Service. Then, you file a Motion for Substitute service.
Motion For Substituted Service
This motion is a request to the Court. It generally tells the court that you have tried to serve the Defendant, but you believe that he or she is evading service or he cannot be found.
Next, in your motion, you must ask the court for the alternative option or other legal means of service.
Under Texas Rules of Civil Procedure 106,
a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by
(1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or
(2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.
(b) Upon motion supported by affidavit stating the location of the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a) (1) or (a) (2) at the location named in such affidavit but has not been successful, the court may authorize service
(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.
In other words, you can ask the court, under part b, if you can leave the citation with the official copies of the petition on the door of plaintiff’s or petitioner’s home. You can also ask for other means of service.
Also, don’t forget to file an Order on Motion for Substituted Service (order) with your motion. The Order is your court paper asking for your motion to be granted.
What are my Alternatives?
The first method is service by hand; that means, the other party gets the document in their hands. When that happens, they have been served.
This should be your go-to method.
There are a couple of options or alternatives to service.
- Leave the citation and a copy of the lawsuit at the door.
- Leave the citation and a copy of the lawsuit with anyone over the age of 16.
- Mail a certified copy of the citation and petition to Defendant’s usual abode of residence. Most courts require certified mail, return receipt requested.
- Publication – posting notice of the lawsuit in newspaper or court’s posting.
- Any other method of service that pleases the court (with evidence); for example, you may be able to serve a close relative or other person, if you can prove to the Court that the Respondent is living with the relative.
I’ve Been Served. Now What?
If you have been served with a lawsuit, you must file an answer with the court.
Your Answer is an opportunity to defend yourself against any false allegations. Even if the allegations are true, there may be a reason for the actions or inaction.
Talk to an attorney about your specific case, defenses, and verified defenses.
When is my Answer Due?
For lawsuits filed in the Texas District Court or in the county court, the Defendant must file an answer by Monday 10 a.m., counting 20 days from the day he or she was served.
What does that mean?
In other words, you count 20 days from the date you received the court documents from the process server. Then you go to the next Monday after the 20th date. That is when your answer is due.
What If I Don’t File an Answer?
If you do not file an answer with the court, a default judgment may be entered against you.
This depends. The Plaintiff must asks the Court for the default judgment.
Once you have been properly served, the case may proceed without you.
What is a Default Judgment?
A default judgment is an order from the court saying that you failed to answer the lawsuit and therefore the plaintiff or petitioner automatically wins.
However, the plaintiff’s win depends on whether or not the plaintiff can prove his claim or damages.
For example, in family law case, Mom claims Dad has neglected the child; therefore, she wants sole custody. Also, she wants to raise the child support amount.
Well, if Dad is properly served with the lawsuit and he fails to answer or appear, then, Mom can ask the court for default judgment.
The Court will set a date. This is mom’s day to prove dad’s neglect. Perhaps, he has not seen or talked to his daughters in three years. She must testify under oath that he has been absent.
Also, she must show the Court that it has been three years since the last child support amount was set. She may also show the Court that the increase in child support amount is greater than $100.
Will the Court Dismiss my Case if I Can’t Find the Defendant?
Well, it depends.
If there is no activity in your case, then the Court will likely dismiss it. It’s called ‘Dismissal for Want of Prosecution’ aka DWOP.
Also, if you still cannot find the Defendant or serve him, then you can ask the Court to reset your case – if you have a court date (hearing or trial) approaching.
The reset will give you more time to find the other party.
Another option is to file a Motion to Retain Case on Docket.
How do I know which motion or move I need to take?
Talk to an attorney about legal advice and strategy.
At Aminu Law Firm, our attorneys are ready to answer your questions and address your concerns.
We get it. Lawsuits can be frightening and uncertain. Schedule a consultation with one of ours counsels, and we can walk you through the steps.
Let us take the stress out of your family matters, so you can have peace of mind.
Call (832) 529-1255.
