In many states, parties are granted immunity while they are in a state in which they do not habitually reside so that they cannot lawfully be served with a summons and complaint JUST because they happen to be there and just happen to be available to an opposing party for service of process.
The question is: Does this argument work? Can someone avoid service of process? What about if the service of process occurs during or before or after a court hearing in the State where they reside?
The question is: Does this argument work? Can someone avoid service of process? What about if the service of process occurs during or before or after a court hearing in the State where they reside?
In a recent Michigan case, Markle v Markle, Docket No 266341 (2007), the defendant in a divorce case filed in Michigan was served with process in that Michigan case when she was in court in Texas on a related matter (a PPO proceeding she'd filed there, against her husband). She challenged the manner in which service was effectuated, arguing that it violated MCL 600.1835(1), which provides, in pertinent part:
All persons going to, attending, or returning from, any court proceedings in any
action in which their presence is needed are
privileged from service of process if
service could not have been made on them had they not gone to, attended, or
returned from the proceedings.
service could not have been made on them had they not gone to, attended, or
returned from the proceedings.
She claimed that the plaintiff did not know where she lived in
Texas. Michigan's Court of Appeals rejected her argument. The COA found
that since nothing in the record supported this claim, she could have
been served in Texas at her home, and therefore, she was not immune from
service of process while she was in court.
There was a slightly different twist in another case. In Moch
v Nelsen, 239 Mich.App. 681 (2000), the plaintiffs appealed as of
right the order granting summary disposition in favor of defendant
pursuant to MCR 2.116(C)(3) for insufficient service of process.
Plaintiff and Defendant were both attorneys, and had a dispute about
monies allegedly owed to Plaintiff for his work on a personal injury
case completed by the defendant. After the defendant, a non-resident of
Michigan, appeared in Lansing to testify before the Attorney Grievance
Commission, he was served at the airport. The COA reversed. The grounds
for the reversal was that the hearing before the AGC was not a "court
proceeding."
To read Markle see the pdf opinion.
As for the Moch case . . . I have to add this image, and I confess: The devil made me do it.
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