from the Superior Court in Maricopa County No. CV2015-009252
The Honorable David B. Gass, Judge
Kelly/Warner, PLLC, Scottsdale By Daniel R. Warner Counsel
Jackson White PC, Mesa By Michael R. Pruitt, Nathaniel J.
Hill Counsel for Defendant/Appellee.
Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge David D. Weinzweig
Russell Ruffino and Clients on Demand LLC (collectively,
"Ruffino") appeal from a superior court order
setting aside a default judgment against Melayna Lokosky.
Because Ruffino had access to Lokosky's email address,
phone number, and social media accounts, we hold under
Arizona Rule of Civil Procedure 4.1(/)(1) that service by
publication without first attempting to communicate with
Lokosky by any of those channels did not constitute
"reasonably diligent efforts" to obtain her
address; therefore, publication was not the "best means
practicable" to provide notice of the lawsuit. We affirm
the superior court's order setting aside the default
judgment against Lokosky as void for lack of jurisdiction.
AND PROCEDURAL BACKGROUND
In December 2015, Ruffino filed a complaint against Lokosky
alleging false advertising and unfair competition,
defamation, false light invasion of privacy, and tortious
interference, all arising from a series of online posts
authored by Lokosky. Lokosky's posts were on a website
she owned and operated, as well as on other social media
After filing the complaint, Ruffino attempted to serve
Lokosky. Ruffino's process server conducted a "skip
trace," which showed three possible addresses in
Scottsdale for Lokosky: one on Hartford, one on Mountain
Spring, and one on Greyhawk.
The process server first visited the Hartford address, which
was where Lokosky lived at the time. Lokosky's mother
told the process server that Lokosky did not live there.
Next, the process server visited the Mountain Spring address,
where the occupant stated she rented the home and Lokosky did
not live there. Finally, the process server made six separate
attempts at service at the Greyhawk address, but no one
answered the door and the home appeared unoccupied.
Ruffino then moved for an order authorizing alternative
service, seeking permission to serve Lokosky by posting the
complaint on the doors of the Mountain Spring and Hartford
addresses and mailing a copy of the summons to those
addresses. Alternatively, the motion requested leave to serve
by publication. The superior court denied Ruffino's
motion, noting that the process server had made only one
service attempt at each of the addresses Ruffino was seeking
to serve by posting and mailing, and that the attempts were
made during the holiday season. Notwithstanding the denial of
the motion, after only one more unsuccessful visit to the
Hartford address, Ruffino served Lokosky by publication in
the Gila Bend Sun. Ruffino did not mail a copy of the summons
and complaint to any of the possible addresses. When Lokosky
failed to appear, the superior court entered a default
judgment against Lokosky awarding Ruffino $264, 062.50 in
damages and injunctive relief. Ruffino later had the default
judgment amended to allow him to secure control of
Lokosky's website. Lokosky became aware of the default
judgment when control of her website was transferred. She
then immediately appeared and moved for a temporary
restraining order to allow her to regain control of the
website. In addition, she moved to set aside or
vacate the default judgment pursuant to Arizona Rules of
Civil Procedure 55(c) and 60(b).
The superior court sought additional briefing on whether to
vacate the default judgment. The court authorized limited
discovery, and scheduled an evidentiary hearing. During the
evidentiary hearing, the superior court made oral findings of
fact as follows:
(1) the process server did not identify herself to
Lokosky's mother when she attempted service at ...