E-Notice Reasonably Calculated? How Mullane Champions Modern Service of Process Adaptations

Blog Post | 112 KY. L. J. ONLINE | October 17, 2023

E-Notice Reasonably Calculated? How Mullane Champions Modern Service of Process Adaptations

By: Kilian Southworth, Staff Editor, Vol. 112

Imagine being on your way to work when, suddenly, an uninsured driver collides into your vehicle. Considering all available options, you decide to initiate suit. After unsuccessfully trying to serve the defendant via certified mail,[1] you provide the defendant’s contact information and $50 service fee[2] to the county sheriff.[3] Upon further inquiry, the sheriff determines that (1) the defendant does not live at the address provided, (2) the current homeowner does not know the defendant, and (3) there is no traceable record of the defendant’s current whereabouts. Clearly, personal service did not work. So now what?

Under Kentucky law, a defendant can be “constructively” served when their place of residence is unknown.[4] The process of constructive service consists of the clerk appointing a “warning order attorney”[5] to make “diligent efforts” by mail to contact the defendant.[6] The warning order attorney has fifty days to locate the defendant. After thirty days, constructive service is deemed complete regardless of whether the defendant has been found.[7] After making attempts to find a current address for the defendant, the warning order attorney must submit a report to the local judge, who, after day fifty, can enter a default judgment.[8]

Considering the previous hypothetical, assume that the warning order attorney was unable to contact the defendant, and the judge issues a default judgment in your favor. After months of frustrating search, with little to come of it, you are effectively in no better position than where you started. Although this method is technically proper under Kentucky law, it leaves plaintiffs fewer options for recovery, whilst the defendant is completely unaware that he has been sued. 

Now consider this: you have the defendant’s name, and a quick Google search reveals his Facebook profile. Upon further research, you come across the defendant's email address. Under the current law, neither the social media profile nor the email address can be used to serve the defendant.[9] But, upon exhaustion of all other options, reaching out electronically seems to be a practical and effective method of serving the defendant. A close reading of Mullane v. Central Hanover Bank & Trust Co.[10] proves that such service passes the constitutional muster.

A foundational requirement of due process is notice.[11] Such notice must be “reasonably calculated, under all the circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to present their objections.”[12] Further, notice must reasonably convey[13] the required information while providing the defendant proper time[14] to respond.

Once all options for personal service are exhausted, the “last resort” becomes constructive service. But the warning order attorney is in no better position to locate the defendant than was the Sheriff’s Office. Under the current law, once the fifty days passes the warning order attorney submits his report, the judge issues default, and the court goes on about their business.[15] Is that really “notice reasonably calculated under all the circumstances?”      

In 2023, social media accounts and electronic forms of communication are ubiquitous. It is arguably unreasonable not to attempt notifying the defendant via email, social media account, or any other electronic means if provided with the opportunity. Although this is a last-ditch attempt, the constitutional requirement is unwavering: constructive notice must be reasonable and calculated.[16]

The Mullane court makes clear, “the form [of notice] chosen [must not be] substantially less likely to bring home notice than other of the feasible and customary substitutes.”[17] Applying this logic to Rule 4.07, it is unquestionably certain that in at least some circumstances, electronic service would reach defendants where personal service and notice via warning order could not.

One final consideration is that notice must be more than a mere gesture.[18] Hence, the serving party must implement reasonable measures that would inform the defendant.[19] When left only with constructive service, reasonable measures in the modern day must account for technological advances. By that logic, sending notice to a defendant via their active social media account, which you have reason to believe is them, or by sending it to their verified email address, is a reasonable way to inform the defendant.

Kentucky’s Rules of Civil Procedure were adopted in 1953, and it has been over forty-five years since Rule 4.05 was last amended.[20] An account for modern and more precise forms of constructive service is long overdue. Adding an additional electronic option for constructive service –in cases where such means are reasonable and likely to inform the defendant of the pending action against them– is both effective and constitutional.

Kentucky has an opportunity to take a leading role in this often-overlooked area of constitutional law. The modern advancements of technology are inevitable, so our state’s service of process requirements should adapt as such.

 [1] KY. R. Civ. P. 4.01(a).

[2]  Service Methods, Kentucky Court of Justice eCourts Help (last visited Oct. 17, 2023), https://ehelp.kycourts.net/service-methods-2/#:~:text=Warning%20Order%20Attorney&text=Warning%20Order%20Attorneys%20do%20not,has%20been%20filed%20against%20them.

[3] Id.

[4] KY. R. Civ. P. 4.05.

[5] P. Christopher Wiley, Kentucky Service of Process: The Requirements and Obstacles, MDK Sol. (Sept. 8, 2020), https://www.manleydeas.com/post/2020-09-08-kentucky-service-of-process-the-requirements-and-obstacles#:~:text=A%20competent%2C%20adult%20individual%20resident,a%20special%20bailiff%20is%20possible.

[6] KY. R. Civ. P. 4.07.

[7] KY. R. Civ. P. 4.08.

[8] KY. R. Civ. P. 4.07(5).

[9] KY. R. Civ. P. 4.04 (providing that the only options for service are certified mail with return receipt requested, or personally delivering the summons and complaint to the defendant).

[10] Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950).

[11] Id. at 314.

[12] Id.

[13] Grannis v. Ordean, 234 U.S. 385, 397 (1914).

[14] Roller v. Holly, 176 U.S. 398, 410-13 (1900).

[15] KY. R. Civ. P. 4.07(5).

[16] Mullane, 339 U.S. 306 at 314.

[17] Id. at 315.

[18] Id.

[19] See, e.g., Hess v. Pawloski, 274 U.S. 352, 354 (1927).

[20] Ky. R. Civ. P. 4.