Friday, September 5, 2014

Pro Se Defendant Prevails in Challenge to Service of Complaint

Pro Se Defendant Prevails in Challenge to Service of Complaint


Snider v. McIntosh, No. 2012-CA-001634-MR (Ky. App. Sept. 5, 2014).


Donald Snider brought suit against Terry McIntosh, a resident of Louisiana.  A Louisiana sheriff delivered the complaint not to Terry but to his wife.   Later, although on exactly what date was not recorded, Terry received another copy of the complaint and summons by certified mail.  When Terry did not file an answer to the complaint within 20 days of the date it was delivered to his wife Snider moved for a default judgment.  Even though an answer was filed the day the motion for default was filed, the trial court granted a default judgment in Snider’s favor.


            On appeal, Snider argued that the delivery of the complaint to his wife, and not to him, was not sufficient to start the clock for the 20 day deadline to file an answer.  Relying upon R.F. Burton & Burton Tower Co. v. Dowell Division of Dow Chemical Co., 471 S.W.2d 708 (Ky. 1971), which in turn cites decisions going back to 1858, the Court of Appeals easily determined that delivery of the complaint to the spouse was not sufficient to effect valid service.


            The Court ordered a reversal of the default judgment and further proceedings, presumably was to when service by certified mail was made.  A concurring opinion by Judge VanMeter would direct that the remand direct the matter to proceed on the merits as an answer has been filed.

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