ORCP 7

 

NOTES OF DECISIONS

 

      Methods of service provided in this rule are not required in order to effect service and are not exclusive of other methods of service reasonably calculated to apprise defendant of action, and failure to comply with provisions relating to content or service of summons is disregarded if failure “does not materially prejudice substantive right of party against whom summons was issued.” Lake Oswego Review v. Steinkamp, 298 Or 607, 695 P2d 565 (1985)

 

      Where summons was served on defendant partnership’s registered agent by certified mail and plaintiff failed to request return receipt, omission is “mere defect” and does not nullify service or conclusion that service was reasonably calculated to give defendant notice of action and defendant’s filing request for production of documents shows it was not materially prejudiced by plaintiff’s failure to request return receipt. Mullens v. L.Q. Development, Oregon, Ltd., 96 Or App 438, 772 P2d 1379 (1989)

 

LAW REVIEW CITATIONS: 16 WLR 714 (1980)

 

ORCP 7B

 

      See annotations under ORS 15.020 and 15.070 in permanent edition.

 

ORCP 7C

 

      See also annotations under ORS 15.040, 15.110 and 15.140 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 15.110)

 

      Proceedings under Oregon forcible entry and detainer law, including proceedings against nonresident defendants, are not subject to general statutes relating to service of process. Lexton-Ancira, Inc. v. Kay, 269 Or 1, 522 P2d 875 (1974)

 

In general

 

      Motion for extension of time that did not deny plaintiff’s allegations and was not directed to sufficiency of the complaint did not constitute appearance. Charles Schwab & Co. v. Pletz, 95 Or App 48, 768 P2d 407 (1989)

 

ORCP 7D

 

      See also annotations under ORS 15.080, 15.110, 15.150, 15.190 and 52.160 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 15.080)

 

      Proceedings under Oregon forcible entry and detainer law, including proceedings against nonresident defendants, are not subject to general statutes relating to service of process. Lexton-Ancira, Inc. v. Kay, 269 Or 1, 522 P2d 875 (1974)

 

      Method of service must be used that has highest probability of giving actual notice. Theones v. Tatro, 270 Or 775, 529 P2d 912 (1974)

 

In general

 

      Rule does not require efforts other than those it specifies. Harp v. Loux, 54 Or App 840, 636 P2d 976 (1981), Sup Ct review denied

 

      Service by mail provisions in this rule did not violate constitutional rights of defendant who could not be located at address or addresses defendant was required by law to provide. Harp v. Loux, 54 Or App 840, 636 P2d 976 (1981), Sup Ct review denied

 

      Default procedures of this rule do not differ substantively from section which rule replaced and do not violate ORS 1.735. Harp v. Loux, 54 Or App 840, 636 P2d 976 (1981), Sup Ct review denied

 

      Where affidavit in support of service by publication did not show that service could not be made by any of the methods set out in this section, it was inadequate and trial court erred in ordering service by publication. Dhulst and Dhulst, 61 Or App 383, 657 P2d 231 (1983)

 

      Where deputy attempting to serve summons recognized defendant’s voice and left papers between the door and the door jamb, service was valid since this rule does not require actual in-hand delivery or a face-to-face encounter. Business & Prof. Adj. Co. v. Baker, 62 Or App 237, 659 P2d 1025 (1983)

 

      Substituted service was not effective where there was no evidence to refute defendants’ claim that person served was not resident of their household and where there was no evidence that plaintiff complied with requirement that plaintiff mail defendants copy of summons and complaint; plaintiff’s proofs indicate only that she sent “certified letters” and do not indicate what those letters contained. Adkins v. Watrous, 66 Or App 252, 673 P2d 572 (1983)

 

      Where defendant was currently residing in Australia, service by publication in Oregon, country in which action was commenced would be inappropriate. Sabre Farms, Inc. v. Bergendahl, 103 FRD 8 (1984)

 

      Provision regarding computation of time following substituted service applies to time periods provided in ORCP and does not apply to time periods provided elsewhere, such as statutes of limitation. Korgan v. Gantenbein, 74 Or App 154, 702 P2d 427 (1985)

 

      Where co-defendant, on own initiative, drove to defendant’s residence in Washington and attempted to hand summons and complaint to defendant, who refused to accept them, service was not accomplished. Jordan v. Wiser, 302 Or 50, 726 P2d 365 (1986); Baker v. Foy, 310 Or 221, 797 P2d 349 (1990)

 

      Actual notice does not cure defective service. Jordan v. Wiser, 302 Or 50, 726 P2d 365 (1986); Baker v. Foy, 310 Or 221, 797 P2d 349 (1990); Campos v. Chisholm, 110 Or App 158, 821 P2d 1121 (1991); Mitchem v. Rice, 142 Or App 214, 920 P2d 1121 (1996), modified 143 Or App 546, 923 P2d 1347 (1996), Sup Ct review denied

 

      Even though defendant failed, in prior action between parties, to serve plaintiff in accordance with this rule, and thus caused plaintiff damages, this rule is not type of statute or rule on which claim of negligence per se can be based because it does not proscribe or require certain conduct for purpose of protecting persons such as plaintiff from harm. Beeman v. Gebler, 86 Or App 190, 738 P2d 605 (1987), Sup Ct review denied

 

      Mail service on attorney is reasonably calculated to apprise client of action and afford reasonable opportunity to appear and defend. Murray and Murray, 88 Or App 143, 744 P2d 1005 (1987)

 

      Where affidavit made no mention of attempt to locate and serve defendant at “dwelling house or usual place of abode” but only detailed attempts to serve defendant at fraternity house where defendant had not resided for at least one year before filing of action, affidavit failed to comply with requirements of this Rule and alternate service was invalid. Dorsey v. Gregg, 89 Or App 194, 748 P2d 154 (1988)

 

      Mailing required to complete substituted service is not required to be by certified or registered mail. Willis v. Edwards, 92 Or App 35, 756 P2d 1273 (1988)

 

      Service by mail having unrestricted delivery was not reasonably calculated to provide notice. Edwards v. Edwards, 96 Or App 623, 773 P2d 809 (1989), aff’d 310 Or 672, 801 P2d 782 (1990); Murphy v. Price, 131 Or App 693, 886 P2d 1047 (1994), Sup Ct review denied

 

      Court determines whether service was adequate by determining if service was made by one of methods listed in ORCP 7D (2); if so, it is presumed adequate, but if not or if presumption was overcome, then court determines whether manner of service nonetheless satisfied reasonable notice standard of ORCP 7D (1); if so, service was adequate, if not, service was invalid. Baker v. Foy, 310 Or 221, 797 P2d 349 (1990); Duber v. Zeitler, 118 Or App 597, 848 P2d 642 (1993), Sup Ct review denied; Beckett v. Martinez, 119 Or App 338, 850 P2d 1148 (1993), Sup Ct review denied

 

      Affidavit in support of order authorizing alternative service of summons must address all types of service specified in ORCP; other rules and statutes or alternative service will be invalid. Colonial Penn Ins. Co. v. Aery, 112 Or App 87, 827 P2d 933 (1992)

 

      Applying second part of Baker v. Foy test, service was adequate under ORCP 7D (1) where process server left summons with defendant’s wife, knowing defendant had not yet established permanent address but maintained regular, frequent and predictable contact with wife. Duber v. Zeitler, 118 Or App 597, 848 P2d 642 (1993), Sup Ct review denied

 

      When applying second part of Baker v. Foy test, trial court has responsibility to resolve dispute over what process server knew about defendant’s whereabouts at time of service and to determine whether with that knowledge manner of service was reasonably calculated to give defendant notice of action under ORCP 7D (1). Beckett v. Martinez, 119 Or App 338, 850 P2d 1148 (1993), Sup Ct review denied

 

      Where server did not ascertain defendant’s whereabouts, frequency or regularity of relative’s contact with defendant, or when relative might deliver summons to defendant, service on relative was not reasonably calculated to give defendant notice of action. Atterbury v. Wells, 125 Or App 591, 866 P2d 484 (1994), Sup Ct review denied; Levens v. Koser, 126 Or App 399, 869 P2d 344 (1994)

 

      Sending copy of complaint to defendant’s insurer, personal service on defendant’s visiting relative and first class mailing of copy of summons to defendant’s residence did not, taken together, constitute service reasonably calculated to notify defendant. Atterbury v. Wells, 125 Or App 591, 866 P2d 484 (1994), Sup Ct review denied

 

      Where service on attorney defendant was made by leaving summons at address listed by defendant with Oregon State Bar, service was reasonably calculated to give notice. Gallogly v. Calhoon, 126 Or App 366, 869 P2d 346 (1994), Sup Ct review denied

 

      Sending true copy of summons and complaint by certified mail, return receipt requested, to defendant’s old address was not reasonably calculated to give notice since plaintiff did not know that mail would be forwarded and delivered to defendant’s new address. Levens v. Koser, 126 Or App 399, 869 P2d 344 (1994)

 

      Office service requires that person physically receiving summons have business duty to insure defendant receives summons and that office be location where person to be served conducts regular occupational activity. Boyd and Boyd, 131 Or App 194, 884 P2d 556 (1994), Sup Ct review denied

 

      Where person to be served maintained regular, frequent and predictable contact with location and location was where person received personal correspondence, delivery of summons to location was reasonably calculated to give notice of suit. Boyd and Boyd, 131 Or App 194, 884 P2d 556 (1994), Sup Ct review denied

 

      “Clerk” means employees at office of registered agent who interact with public, have regular contact with registered agent and have some obligation to pass along documents to registered agent. Abbotts v. Bacon, 133 Or App 315, 891 P2d 1321 (1995)

 

      Where corporate place of business listed as address of registered agent was single location of small size, delivery to place of business was delivery to “office” of registered agent. Abbotts v. Bacon, 133 Or App 315, 891 P2d 1321 (1995)

 

      “Address given by the defendant at the time of the accident” does not refer to address on file with MVD at time of accident. Paschall v. Crisp, 138 Or App 618, 910 P2d 407 (1996), Sup Ct review denied

 

      Service on Motor Vehicles Division is permissible only where, for each service method listed in cross-referenced paragraph, plaintiff has attempted service or affidavit specifically shows that attempt would be futile. Mitchem v. Rice, 142 Or App 214, 920 P2d 1121 (1996), modified 143 Or App 546, 923 P2d 1347 (1996), Sup Ct review denied

 

      Mail by unrestricted delivery, although inadequate by itself to give notice, may be considered as part of total circumstances in determining whether manner of service was reasonably calculated to give notice. Hoeck v. Schwabe, Williamson & Wyatt, 149 Or App 607, 945 P2d 534 (1997)

 

      Provision that mailing completes substituted service for purpose of time period prescribed or allowed by rule means that mailing is not jurisdictional for purposes of statute of limitations. Pham v. Faber, 152 Or App 634, 955 P2d 257 (1998), Sup Ct review denied

 

      Adequate service is prerequisite to disregard of nonprejudicial error in service. Pham v. Faber, 152 Or App 634, 955 P2d 257 (1998), Sup Ct review denied

 

      Plaintiff “knew” service could not be accomplished if information possessed or available after reasonable effort did not provide basis to attempt service or to know service was possibility. Carlson v. Martin, 160 Or App 350, 983 P2d 1031 (1999), Sup Ct review denied

 

      Lack of actual notice is not dispositive of whether service was reasonably calculated to give notice. Benavidez v. Benavidez, 161 Or App 73, 984 P2d 307 (1999), Sup Ct review denied

 

      Personal service of order entered after action has commenced does not substitute for service of summons in underlying action. Alloway and Duncan, 165 Or App 624, 996 P2d 1010 (2000)

 

      For action arising out of operation of motor vehicle upon roads, highways, streets or premises open to public, mailing requirement for residence addresses provided by defendant and in Department of Transportation records is not subject to futility exception. Roberts v. Laughlin, 176 Or App 227, 31 P3d 453 (2001)

 

      Where summons and complaint are delivered to office of defendant, totality of circumstances determining whether service was reasonably calculated to apprise defendant includes events that occur in period during which follow-up mailing could reasonably be accomplished. Williams v. Jett, 183 Or App 611, 54 P3d 624 (2002)

 

LAW REVIEW CITATIONS

 

In general

 

      62 OLR 465 (1983)

 

ORCP 7E

 

      See also annotations under ORS 15.060 in permanent edition.

 

NOTES OF DECISIONS

 

      Enlargement of class of persons who may serve summons in civil actions does not affect sheriff’s statutory duty to serve summons under ORS 206.030. In the matter of the marriage of Hamilton and Hamilton; Hamilton v. Smith, 66 Or App 936, 676 P2d 341 (1984)

 

ORCP 7F

 

      See also annotations under ORS 15.060, 15.110 and 15.160 in permanent edition.

 

NOTES OF DECISIONS

 

      When defendant has been properly served with copies of summons and complaint, failure to file timely proof of service does not void default judgment entered before proof of service is filed, when other material in file at time default order is entered shows that service has been made. Far West Commercial Finance Co. v. Masters, 94 Or App 366, 765 P2d 822 (1988), Sup Ct review denied

 

ORCP 7G

 

NOTES OF DECISIONS

 

      Actual knowledge of filing of complaint is insufficient to establish jurisdiction over parties who are not served with any complaint or summons. Adkins v. Watrous, 66 Or App 252, 673 P2d 572 (1983)

 

      Court erred in vacating judgment for separation based on husband’s failure to properly serve amended petition on wife in accordance with ORCP 9A without resolving factual issue of wife’s actual knowledge for purposes of this section. Mannix and Mannix, 97 Or App 395, 776 P2d 873 (1989)

 

      Actual notice does not make service adequate if method of service was not reasonably calculated to give notice. Murphy v. Price, 131 Or App 693, 886 P2d 1047 (1994), Sup Ct review denied