If the certified mail notice is not returned or is returned "refused" or "unclaimed" and the defendant does not appear for trial, he or she may be defaulted unless the separate first class mail notice has been returned undelivered. If notice is insufficient under Uniform Small Claims Rule 3 to permit a default to be entered, the plaintiff should be told what further service is necessary.
Commentary
If the certified mail notice is returned "refused" or "unclaimed" but the separate first class mail notice is not returned undelivered, an inquiring plaintiff should be advised that he or she must still appear at court on the scheduled trial date. The plaintiff must be prepared for trial because the defendant may appear, based on the first class mail notice. If the defendant does not appear, the plaintiff’s presence may be necessary to have the amount of damages set and because the court may wish to inquire into the basis of liability. See Standard 6:02. If the defendant does not appear, a default judgment should normally be issued. See Uniform Small Claims Rule 7(c); Standard 6:02.
If the separate first class mail notice is returned to the court undelivered, the plaintiff should be so informed. If the plaintiff believes that the defendant may be located at another address, new service should be made to that address by certified mail and by first class mail. As with initial notice, there should be no charge to the plaintiff. If the new address creates venue issues, see Standard 3:02.
If additional service by mail is not advisable, the plaintiff should be instructed how to arrange for a different method of service. The form of that service is to be as "[t]he Court may provide ... in individual cases as is deemed necessary" (Uniform Small Claims Rule 3[a]) and is not limited by the rules of service in other civil cases, although reference to service in other civil cases will provide guidance to the court in determining other means of service. See Uniform Small Claims Rule 1. This is an area appropriate for local experimentation. The following considerations are suggested to guide such experimentation:
- The goal is to ensure actual notice to the defendant. That goal must, within constitutional limits, be balanced with the recognition that some defendants consciously avoid service, and that expense or delay to the plaintiff are particularly to be avoided in small claims.
- Where both certified and regular first class mail notice have failed, further mail service of any sort to the same address is probably futile.
- Requiring in-hand service by a constable or deputy sheriff, while more certain, may add considerably to expense and delay. If cost is an important concern to a small claims plaintiff, the court may wish to consider appointing someone nominated by the plaintiff as an unpaid special process server. If the plaintiff selects this option, the court should make the plaintiff aware that in-hand service by someone other than a constable or deputy sheriff may be difficult to effect, may increase the opportunity for a reluctant defendant to avoid service, and may even invite a physical confrontation between the defendant and the server.
- If a defendant’s residence or workplace is known with some certainty, "last and usual" service delivered by a process server appears to be an appropriate solution in many cases.
- When a constable or deputy sheriff is to make service on the defendant, he or she should be encouraged to file the return at least three days before the scheduled trial date, so that the plaintiff will be able to ascertain in advance whether service has been made. When anyone other than a constable or deputy sheriff is permitted to effect in-hand or "last and usual" service, his or her return should be in the form of an affidavit filed at least three days before trial. The clerkmagistrate’s office shall make available copies of the customary sheriff’s return as an exemplar of such an affidavit.
If service cannot be effected prior to the scheduled trial date, the plaintiff should not be required to appear in order to obtain a continuance date. A court’s case management policies should permit the clerk-magistrate’s office to assign a further date in such cases.
If it is determined that the defendant cannot be served within the court’s jurisdiction but his or her whereabouts are known, the plaintiff should be advised as to the proper court in which to continue the action. Upon the plaintiff’s request, the small claim should be transferred to that other court with an appropriate note of its status. See G.L. c. 218, s. 21.