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No doubt the preferred way to accomplish service of process on a party to bring them into a lawsuit in Oregon is to obtain personal service on them. Ideally, the person would be properly and precisely identified in the papers by their legally-given name, and the process server would personally hand-deliver the papers to them at their residence; no plaintiff would ever get the defendant's name wrong, and there would never be any resistance or deception employed by the receiver of the documents. But in the real world, everything isn't always ideal.
A recent criminal case decided by the Court of Appeals of the State of Oregon illustrates what kind of things can go wrong and how Oregon courts approach deciding whether imperfections in naming a party or the manner in which they are served with process are fatal or merely inconsequential to a proceeding's ultimate outcome.
In State of Oregon v. Tina Michelle Arnold, 301 Or.App. 642 (2020) (State v. Arnold), a defendant named Tina Arnold was married to a gentleman by the name of F. Ball, but she had not ever legally changed her last name to Ball. When her father-in-law later sought to obtain a restraining order against Ms. Arnold, the paperwork he filed and served against her for the restraining order named her as “Tina Ball”, the only name by which he knew her. A deputy with the Multnomah County Sheriff's Office personally served Tina Arnold with that restraining order at the residence which she shared with the father-in-law plaintiff and her husband. The restraining order essentially required her to quit the premises and stay away from the father-in-law. Later, after it was reported that she had returned to the residence and was trying to get in, police responded and charged her with violating a lawful restraining order by willfully attempting to enter the stepfather's residence. She asserted in defense to the criminal charge that it was her belief that the restraining order did not apply to her because it did not correctly state her legal name. She was convicted at trial, however, after evidence revealed that she was married to F. Ball, sometimes responded to the name of “Tina Ball”, and received mail under that name – even if it wasn't her official legal name – and as evidence further confirmed that she had personally received a copy of the restraining order when it had been served on her by the sheriff's deputy. In the decision cited above, the Court of Appeals of the State of Oregon upheld the conviction, after discussing Oregon's rule related to personal service, ORCP 7, and case law which addresses imperfections (a) in the naming of parties to an action, and (b) obtaining personal service on them.
As to the contention that the restraining order labeled her as “Tina Ball” when her legal name was Tina Arnold, the appellate court concluded (as had the trial court) that there was ample evidence in the record to support the trial court's finding that Ms. Arnold knew that the restraining order applied to her.
The following discussion, however, from the Court of Appeals' decision is likely to be of greater interest to civil practitioners insofar as it is instructive on the issue of how perfect must “personal service” be in order to withstand attack from a defendant claiming insufficient service of process:
First, as we have explained, the rules for personal service under ORCP 7 “do not require an actual in-hand delivery, or a face-to-face encounter with an acknowledgment of identity from the person to be served,” because, “[t]o so require would allow a defendant to defeat service simply by refusing to identify himself or accept the papers” and “[i]t would make personal service a degrading game of wiles and tricks, rather than a procedure for insuring that a defendant receive actual notice of the subject and pendency of an action.” Business & Prof. Adj. Co. v. Baker, 62 Or.App. 237, 240-41, 659 P.2d 1025 (1983); ORCP 9 A (“every order *** and every *** notice *** shall be served on each of the parties”). And, even when a defendant is not served in compliance with ORCP 7, we determine whether the service was adequate to provide a defendant notice of the court's order by “examining the totality of the circumstances.” Hoek v. Schwabe, Williamson & Wyatt, 149 Or.App. 607, 617, 945 P.2d 534 (1997).
In the case of Business & Prof. Adj. Co. v. Baker, cited above, the Court of Appeals was confronted with a different factual backdrop. Interestingly, it concluded that personal service was adequate, notwithstanding the lack of a face-to-face encounter between the process server and the defendant, when the former recognized the latter's voice through a closed door, announced to the defendant standing behind the door that he was being served, and wedged the papers securely in the area of the door.
The other case cited above, Hoek v. Schwabe, Williamson & Wyatt, provides another example of an Oregon appellate court finding that less-than-perfect service under ORCP 7 was nevertheless sufficient where the trial court record overall supported a conclusion that the defendant had received reasonable notice of the pending action:
Schwabe also contends that the follow-up service by mail has no import, because it was sent by unrestricted delivery.
We have carefully reviewed the record and find no argument to the trial court that the service was valid under the provision in ORCP 7 D(3)(b)(i) that authorizes service on “any clerk on duty in the office of a registered agent.” We do not consider that argument for the first time on appeal. Ailes v. Portland Meadows, Inc., 312 Or. 376, 380, 823 P.2d 956 (1991).
We nevertheless conclude that the service satisfied the reasonable notice requirements of ORCP 7 D(1). As with our review of the service of Guinasso, we review the adequacy of the service on Schwabe in the light of the totality of the circumstances as they were known to plaintiffs at the time of service. [Citations omitted.]
This notion of whether the service attempts “satisfied the reasonable notice requirements” – which as the above-quote notes derives from the language of the personal service rule itself – is an important consideration oft-addressed in Oregon cases faced with sufficiency of process service challenges.
It nevertheless is elemental that obtaining valid service of process on a properly named party is a critical part of commencing any type of lawsuit or litigation. The practitioner should always be as thorough and cautious as possible in properly naming the party against whom the action is being brought, and in getting them properly served – with due respect paid to ensuring strict compliance with all aspects of the technical requirements of the applicable service rules. Failures in sufficiency of service of process and instances of misnaming of defendants may especially end up being fatal to a plaintiff's successful prosecution of their case if they try to initiate the action on the cusp of a time deadline such as the applicable statute of limitations. Thus, whenever possible, actions should be filed well enough in advance of any potential time deadlines to enable naming glitches and process service difficulties to be ferreted out and corrected through the discovery and pleading amendment process well before it is too late to safely do so.
Still, the above cases and the principles they rely upon do offer hope for the Oregon practitioner or plaintiff who may find themselves in a predicament – perhaps with less certainty about their target defendant's precise legal name and location for service than they would like to possess in a perfect world, but with the need to press on with litigation for their client anyway. That can certainly happen because, let's face it, in the real world, everything isn't always ideal.