What constitutes reasonable diligence before service by publication in Utah? Jackson Construction Co. v. Marrs Explained

The Utah Supreme Court’s decision in Jackson Construction Co. v. Marrs provides crucial guidance on the reasonable diligence requirement for service by publication under Rule 4(d)(4)(A) of the Utah Rules of Civil Procedure. This case demonstrates that constitutional due process protections cannot be circumvented by minimal search efforts, even when property owners appear indifferent to their interests.

Background and Facts

Douglas and Robert Marrs inherited undivided one-fourth interests in Washington County property in 1981. Jackson Construction later acquired the remaining interest and filed suit in 1998 seeking adverse possession of the Marrs brothers’ interests. Jackson Construction obtained permission for service by publication after representing that it had mailed one letter to the defendants’ last known California address, which was returned as “undeliverable.” The trial court entered a default judgment terminating the Marrs brothers’ interests when they failed to respond to the published notice.

Key Legal Issues

The central issue was whether Jackson Construction exercised reasonable diligence in attempting to locate the defendants before seeking service by publication. The defendants argued that the trial court lacked jurisdiction to enter the default judgment due to inadequate service of process. A secondary question involved whether a property owner’s apparent disinterest in their property could excuse the reasonable diligence requirement.

Court’s Analysis and Holding

The Utah Supreme Court reversed, holding that Jackson Construction failed to meet the constitutional reasonable diligence standard. The court rejected Jackson Construction’s argument that the defendants’ past indifference toward the property lowered the required level of diligence. Citing Mullane v. Central Hanover Bank & Trust Co., the court emphasized that due process requires notice “reasonably calculated” to reach interested parties, regardless of their apparent interest level.

The court found Jackson Construction’s efforts woefully inadequate—consisting only of one returned letter. Reasonable diligence requires taking advantage of readily available sources of information, such as telephone directories, public records, or contacting former associates like the previous cotenant Mac Reber.

Practice Implications

This decision establishes that Utah courts will strictly enforce the reasonable diligence requirement for service by publication. Practitioners must document extensive search efforts before seeking alternative service. The court’s colorful analogy—comparing inadequate service to “rolling up the summons, shoving it into a bottle, and throwing it into the ocean”—underscores the importance of genuine efforts to locate defendants. Modern technology makes nationwide searches relatively inexpensive, raising the bar for what constitutes reasonable diligence in contemporary practice.