From Law360
Shaquille O’Neal won four championship rings during his legendary basketball career, and now he’s chasing a legal accomplishment that’s just as elusive: successfully avoiding service long enough to have a civil suit against him dismissed.
For months, O’Neal has dodged attempt after attempt by process servers to formally notify him about a proposed class action targeting O’Neal and other celebrities for endorsing the now-bankrupt cryptocurrency exchange FTX. All the other celebrity defendants quietly accepted service months ago, but not O’Neal.
Lawyers for the plaintiffs finally threw up their hands in April and asked U.S. District Judge K. Michael Moore to allow them to serve O’Neal via his social media accounts or by email to his attorneys. Judge Moore, apparently a stickler for the old school way of doing things, rejected the demand as “frivolous,” despite the fact that in recent years, other judges have increasingly approved those methods when traditional attempts at in-person service fail.
Process servers claim to have finally served O’Neal a few weeks ago by throwing a stack of legal papers at his speeding car in Georgia, but O’Neal’s lawyers have called that incident sloppy and inadequate. Now they’re asking that he be dismissed from the lawsuit.
“Plaintiffs have had months and multiple tries,” O’Neal’s attorneys wrote. “Mr. O’Neal has not evaded service by failing to be at the residences where plaintiffs belatedly attempted service or by driving past strangers who approached his car.”
That motion was denied as moot when the plaintiffs filed an amended complaint, potentially starting the whole ordeal over again. If O’Neal continues to evade service and successfully exits the case because of it — a huge if, to be sure — he will be adding the legal equivalent of a championship ring to his long list of accomplishments, according to several veteran process servers.
“Never, never. No, no, no,” said Larry Yellon, when asked if he’s ever seen a defendant avoid a lawsuit simply by waiting out the clock for process of service, the term for formally notifying someone that a lawsuit has been filed against them. “Sooner or later, you’re gonna get served.”
Yellon, founder of Intercounty Judicial Services, has been a process server for 45 years in and around New York City. He said that while he’s never seen it work in the long run, he most often encounters defendants dodging service in divorce cases and other suits where the parties know each other.
“It’s usually acrimony, personal distaste between the parties,” Yellon said. “I see it in many cases where they think it’s a way of getting their adversary annoyed, or making their adversary spend more money.”
In O’Neal’s case, however, Yellon and other veteran process servers who spoke with Law360 Pulse admitted to being puzzled.
“I can’t answer that,” Yellon said. “Sometimes people do things because of their ego. Ego is a strange thing. Maybe it’s sort of, ‘Who are you to serve me?'”
Michael Kern, a second-generation process server who’s been at it for 30 years and runs Direct Legal Support in Los Angeles, said most celebrity defendants are only too happy to accept service quietly and amicably.
“I’m just totally surprised when they do it,” Kern said of celebrities who try to duck service. “When we serve a celebrity, the first thing we do is call their manager and say, ‘Listen, we’ve got legal documents, and we’d like to make arrangements. We don’t want a spectacle; you’re gonna get it one way or the other.'”
The reason process servers can be so confident defendants will ultimately be served is “alternative service,” a term that means judges can allow plaintiffs to fulfill service requirements by alternative means, if thorough and good faith attempts to serve a defendant with documents directly come up short.
Traditionally, that’s meant judges allowing plaintiffs to run newspaper ads for several weeks in the area where the defendant lives, at which point the defendant is considered served and the lawsuit can begin. If the defendant still doesn’t appear in the case, they’ll be hit with a default judgment that will include the costs incurred by the process servers.
In the past few years, some courts have stretched alternative service to include direct messages on Twitter, Instagram and Facebook, or emails to defendants or their attorneys. But the use of those digital service methods appears to hinge on which judge is hearing the case.
Alternative service is still a last resort that’s usually approved only after a long and drawn out process, meaning process servers will often resort to the dramatic before the digital.
Last year, actress Olivia Wilde, for example, was served custody papers while onstage in front of an audience, discussing her latest film at an industry conference. Those documents came from her ex, fellow actor Jason Sudeikis. The former couple have two children together.
At the time, other process servers reportedly said the spectacle was probably a last resort.
Direct Legal’s Kern said those sorts of deliveries are sometimes necessary, though. Kern himself has had a gun pointed at his head, a rottweiler thrown into his car and many hoses turned on him by angry defendants. But he said it’s never stopped him or any other process server he knows.
“I’ll serve them on the red carpet in front of the cameras,” Kern said. “That’s my job. I don’t mind letting the tab run all the way up.”
There have been several other high-profile instances of individuals dodging service in recent years. Last year, Ken Paxton, the attorney general of Texas, used his wife as a decoy, then ran out of his house and sped off in his truck to avoid service of a subpoena in an abortion-related lawsuit, according to court documents.
David Miscavige, leader of the Church of Scientology, ducked service of a human trafficking lawsuit for months until a U.S. magistrate judge declared him served earlier this year. Other headline-grabbing cases involve golf legend Tiger Woods, controversial rapper Kanye West and, according to the New York Post, even the president’s son Hunter Biden.
Paxton ultimately had his subpoena quashed on grounds unrelated to process of service, and details on the Hunter Biden situation are sparse. But ducking service doesn’t appear to have worked for any of the other celebrities who have attempted it in recent years.
Jillina Kwiatkowski, founder of Smart Servce Process Serving Inc. just outside Buffalo, New York, said she’s never seen dodging service work and isn’t sure why defendants still bother.
“Maybe they’re just putting off the inevitable for a while,” she said. “I guess it’s the art of the game. People might not know they’re going to get served, but they will.”
Read more at: https://www.law360.com/personal-injury-medical-malpractice/articles/1679655?nl_pk=029cff45-637f-44e3-babf-75563f8e0bfd&utm_source=newsletter&utm_medium=email&utm_campaign=personal-injury-medical-malpractice&utm_content=2023-05-22&nlsidx=1&nlaidx=7?copied=1
