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What if I Cannot Locate the Defendant

The law requires that you exercise "due diligence" in trying to locate the defendant. If the service by mail you sent is returned or if you cannot locate the defendant, you may get constructive service on the defendant by publication. You will need to present to the court clerk an affidavit (which is a sworn statement) that you have tried to locate the defendant but were unable to do so. (See Affidavit for Service by Warning Order in the form packet at the end of this page). On the affidavit, you will need to list all the efforts you made in trying to find the defendant. You will need to file the affidavit with the court clerk. 

The clerk should then issue a Warning Order. (See Warning Order in the form packet). This Warning Order will direct the defendant to enter an appearance within 30 days from the date of the first publication of the order. If the defendant does not file an answer within that time given by the court, he or she may be prevented from answering.

How Do I Publish a Warning Order?

Publishing can be done by one of two ways: 

  1. If the court granted you permission to waive your court filing fee (In Forma Pauperis), then you may post the Warning Order in the courthouse for a period of 30 days. Ask the court clerk to direct you to the bulletin board used for postings.
  2. If the court did not waive your filing fee, then you will have to publish the warning order in a newspaper of general circulation every week for at least two weeks. Once the publication period has run, the newspaper will mail you a "proof of publication," which must be filed with the court.

What Do I Do After Publishing a Warning Order

Whether you post the Warning Order at the courthouse or publish it in the newspaper, you must send a copy of the Complaint and Warning Order to the defendant at his or her last known address. The Complaint and Warning Order should be sent certified mail, restricted delivery, return receipt requested. When you receive the green card or returned letter, you must prepare and file another affidavit with the clerk that shows:

  1. you mailed and received back the green card or letter and
  2. that publication has been made by either of the two ways listed above. (See Affidavit of Service by Warning Order.) Once all of the above requirements have been completed, you may ask the court clerk to schedule a hearing date so that you may proceed with the hearing on the merits.

Service by Publication Form Packet