Description: Michael Montes owns two
houses, one in California and the other in Wisconsin. After
filing this suit, Craig Cunningham arranged for service of
process at the Wisconsin address. No one came to the door.
The process server called Montes, who refused to provide
his current location. After an ex parte submission from Cunningham,
the district judge authorized service by publication.
2017 U.S. Dist. LEXIS 26804 (W.D. Wis. Feb. 27, 2017).
2 No. 17-2516
Cunningham then published notice in periodicals that circulate
only in the Midwest. When Montes did not answer the
complaint, the district court entered a default.
After learning about this case from a defendant in another
of Cunningham’s suits, Montes asked the court to set
aside the default. See Fed. R. Civ. P. 55(c). The judge declined,
writing that “Montes has rather persistently sought
to evade service in both California and Wisconsin”, 2017 U.S.
Dist. LEXIS 111115 at *5 (W.D. Wis. July 18, 2017), and entered
a judgment for more than $175,000.
The judge did not elaborate on his statement that “Montes
has rather persistently sought to evade service in both
California and Wisconsin”; indeed, the judge did not relate
what Montes has done to evade service in either state. True,
no one opened the door when a deputy sheriff arrived in
Wisconsin with a summons, but being at a different home in
a different state is not a form of evading service. True, Montes
did not provide his address when the deputy sheriff
called, but anyone can claim over a phone to be a public official
with a legitimate need for information; few people will
provide personal details to strangers in response to cold
calls. And there is no evidence that Montes has evaded service
in California, because Cunningham concedes that he
has not tried to serve Montes there.
The propriety of resorting to publication depends on Wis.
Stat. §801.11(1), which says that when “reasonable diligence”
has not succeeded in producing service in hand, then a court
may authorize service by publication. The district court did
not explain why the “reasonable diligence” standard is satisfied
when service is attempted at only one of a defendant’s
known residences. (Cunningham concedes knowing Mon
No. 17-2516 3
tes’s address in California.) Wisconsin requires a plaintiff
who knows or readily can learn that a defendant has multiple
addresses to akempt to serve the defendant at each address.
Compare Haselow v. Gauthier, 212 Wis. 2d 580, 585–89
(App. 1997), with Loppnow v. Bielik, 2010 WI App 66, ¶¶ 20–
21. Cunningham has not done that. Nor did the judge explain
why a single visit from a process server is “reasonable
diligence”; Wisconsin requires more effort than that. See
Beneficial Finance Co. v. Lee, 37 Wis. 2d 263, 269 (1967);
Heaston v. Austin, 47 Wis. 2d 67, 74 (1970).
At oral argument Cunningham told us that he decided
not to serve Montes in California because listings on the Internet
show that the California house is available for rent by
the week. Cunningham concluded that Montes does not live
in California at all. That’s not a good inference. Many people
who divide their time between two houses try to cover part
of the cost by renting out the place they are not using at the
time. Businesses offer time-share services to homeowners,
and the advent of Airbnb enables owners to handle these arrangements
on their own. It would not be sound to treat as
unoccupied (by the owner) any house available to rent by
the day or week. And the district judge did not so treat Montes’s
house in California. Neither, however, did the judge
explain how the statutory requirement of “reasonable diligence”
is satisfied by a plaintiff who did not try to serve the
defendant at one of the defendant’s known addresses.
Montes filed an affidavit stating that his principal residence
is the house in California and listing all dates when he
and his wife were in Wisconsin during 2016 and the first half
of 2017. If the statements in the affidavit are true, then Montes
was in California when the process server arrived in Wis4
consin. Cunningham suspects that Montes is lying; maybe
the district judge does too, but the judge did not find that the
statements in this affidavit are false. If Montes is playing a
shell game—claiming to be in Wisconsin when process servers
arrive in California, and in California when process servers
arrive in Wisconsin—that would support a finding that
he is evading service. Given the lack of any effort to serve
him in California, however, it would be difficult to make
such a finding in this case. Montes appeared in this litigation
promptly after learning of its existence; that is a mark in his
favor. We cannot exclude the possibility that he has tried to
play games, but the absence of any factual finding to that
effect (after adversarial rather than ex parte procedure) requires
further proceedings. Unless new evidence shows that
Wis. Stat. §801.11(1) has been satisfied despite Cunningham’s
decision not to akempt service in California, the default
must be vacated and the case decided on the merits.