On January 23, 2013, the Delaware Superior Court in McLeod v. McLeod, C.A. No. N11C-03-111 (Brady, J.) denied Plaintiff Steven A. McLeod's Motion for Order to Allow Alternative Method of Service of Process. Read the entire decision here. This decision reaffirms that a plaintiff may not properly serve a named defendant via that defendant's former attorney except in certain specific circumstances.

Steven McLeod brought suit in Delaware against Defendant Hughey McLeod, alleging that Hughey had abused him as a child.  Plaintiff attempted to serve Defendant, an out-of-state resident, under the Delaware long arm statute (10 Del. C. § 3104) by serving a Florida attorney who had represented Defendant in a civil case that Plaintiff had filed against Defendant in Florida for the same allegations.  The Court held that this method of service was not proper.

The Court first noted that Section 3104 provides the Court the authority to direct a manner of service, provided that service be "reasonably calculated to give actual notice." 10 Del. C. § 3104(d). Further noting that "due process requires that a party be served notice that is reasonably calculated under all circumstances to apprise interested parties of the pendency of the action, and afford them an opportunity to present their objections," the Court then stated the general rule that "Delaware Courts have held that a plaintiff may not properly serve a named defendant via a defendant's former attorney unless the plaintiff can show that the attorney is an authorized agent for service of process or that the attorney and named defendant have maintained communications."  (Opinion at 2.) 

In reviewing the record before it, the Court concluded that Plaintiff had not presented sufficient information to establish that Defendant's former Florida attorney is authorized to accept service on behalf of Defendant, or that the attorney maintains contact with Defendant "in a manner that serves as a basis for a reasonable calculation that serving the attorney will apprise [Defendant] of the present litigation." (Opinion at 3.) The Court further concluded that it lacked authority to order Florida sheriffs, courts, or other branches of government to effect service upon Defendant, reasoning that the Full Faith and Credit Clause of the United States Constitution "does not require states to enforce each other's statutes." (Opinion at 4.) Accordingly, the Court held that Plaintiff's method of service was ineffective.

The McLeod decision confirms that plaintiffs should be careful to choose a method of service that is "reasonably calculated to give actual notice" to the named defendant.


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