Strategies, Challenges, and Answers

Substitute Service Of Process Through The DMV

Every year, U.S. Department of Transportation estimates the number of registered vehicles on the road HERE.  In 2017, the number was 272,480,899.   It is no wonder that Plaintiffs sometimes struggle to locate and serve a driver that has been involved in automobile accident.  When face to face service is not possible, the State of Nevada provides Plaintiffs with a method of substitute service; namely service of process through the Nevada Department of Motor Vehicles.

NV DMV license N.R.S. 14.070 explains the steps that need to be followed to use DMV Service.  However, some Plaintiffs try to use this statute when it is not appropriate or they do so incorrectly.  Let’s examine some of the common errors in completing DMV service.

Five of the most common errors by Plaintiff’s counsel are:

  1. First, Plaintiff must attempt personal service before moving to DMV service.  If personal service is successful, there is no need for DMV service.  If not, the process server should generate an affidavit of due diligence that says that the driver has either left the state or cannot be found.

  2. Plaintiff then must serve the representative at the DMV.  Thereafter, Plaintiff is supposed to mail (either registered or certified with return receipt requested) a copy of the summons and complaint to the driver at the address on the accident report.  Plaintiffs sometimes think that sending the summons and complaint to the DMV is enough.  It is not.

  3. The mailing described in 2) above should generate a green card demonstrating that the mail was either delivered, refused or the recipient could not be located.  Without that green card, service is not complete.

  4. After the forgoing steps are taken, Plaintiff must prepare an Affidavit of Compliance stating that all statutory requirements for DMV service have been fulfilled.  That Affidavit needs to be filed with the court.

  5. Sometimes the Plaintiff will file the Affidavit but will not attach any documents.  Plaintiff must attach the affidavit of due diligence, the proof of service on DMV and the green card.  This step of attaching the documents is often neglected.

Failure of plaintiff to comply with any of the foregoing constitutes inadequate notice and is not valid service until corrected.  Some counsel for Plaintiffs seem to have more trouble getting this type of service right.  This frustration on their part can be to the advantage of our client.  We may be able to buy extra time while Plaintiffs’ counsel attempts to correct service.

Please talk to us about whether challenging service of process is going to be the best thing to do, since each case is fact specific.