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Ruffino v. Lokosky

Court of Appeals of Arizona, First Division

July 12, 2018

RUSSEL RUFFINO, et al., Plaintiffs/Appellants,
v.
MELAYNA M. LOKOSKY, Defendant/Appellee.

          Appeal 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 for Plaintiffs/Appellants.

          Jackson White PC, Mesa By Michael R. Pruitt, Nathaniel J. Hill Counsel for Defendant/Appellee.

          Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge David D. Weinzweig joined.

          OPINION

          McMURDIE, Judge

         ¶1 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.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 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 platforms.

         ¶3 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.

         ¶4 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.

         ¶5 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.[1] 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.[2] In addition, she moved to set aside or vacate the default judgment pursuant to Arizona Rules of Civil Procedure 55(c) and 60(b).[3]

         ¶6 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 ...

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