By Don Resnikoff
Imagine you are a Defendant in a lawsuit and you find out the Judge ruled against you when you didn’t even know there was a case. One cause for this situation could have been a practice known as sewer service. “Sewer service” is a term that refers to the intentional failure to provide service of process on a named party in a lawsuit. The fraudulent service of process can have devastating effects on a defendant because a default judgment can be entered without the defendant being able to mount any defenses or even knowing about the lawsuit. In housing cases, a defendant may be evicted without learning that a lawsuit had been filed.
Sewer service has become particularly troubling in the Landlord and Tenant Branch of D.C. Superior Court. Adrian Gottshall, Managing Attorney at the D.C. Bar Pro Bono Center, noted the practice while working as an Instructor of Law at UDC David A. Clarke School of Law’s Housing and Justice Clinic when she penned Solving Sewer Service: Fighting Fraud with Technology. Adrian wrote: “Years have passed since the first day that I observed ‘roll call’ in the District of Columbia Landlord and Tenant Branch, and I no longer wonder why some tenants in default fail to appear. I unequivocally know that service practices are unreliable and unfair. There are systemic due process violations occurring in the form of improper and ineffective service of process. Most troubling is that many defendants do not appear for the court simply because they do not know about their case.”
During Adrian’s representation of clients facing eviction, she found some disturbing patterns. Affidavits of service filed in Landlord Tenant cases showed that process servers swore to have attempted personal service on multiple defendants in different parts of DC at the exact same time or within minutes of each other, and some process servers had suspiciously low rates of personal service success. While there has been some success in countering sewer service in individual cases, the practice has become so widespread that default judgments are being entered against pro se litigants at relatively high rates.
Advocates in DC are mobilizing to systemically address this issue by targeting the most egregious offenders. Recently, Steptoe & Johnson LLP filed suit in U.S. District Court alleging sewer service by Metropolitan Process Services, LLC and process server Karl Stephens in matters before the Landlord and Tenant Branch. (Whitlock, et al, v. Metropolitan Process Services, LLC, et al., Case 1:20-cv-00339, assigned to Judge Leon). The Complaint alleges that Mr. Stephens knowingly submitted false affidavits of service stating that he had attempted to serve and actually served process on Plaintiffs when in fact he did not. “If you are going to put people out of their house and the process server is faking it, that’s just not fair,” said John O’Connor, Partner at Steptoe & Johnson LLP, Plaintiffs’ lead attorney.
The Plaintiffs’ allegations depend on looking at more than one affidavit of service in isolation: “Each of the affidavits of service submitted by Defendants, standing alone and viewed in the context of a single case, appears to be in order. However, when these affidavits of service are reviewed together, obvious irregularities appear. For example: In most cases, Stephens did not even individually sign and swear to the affidavits. Hundreds of his affidavits, purportedly completed months apart, have the exact same signature in the exact same spot on the signature line, with the exact same notary seal, with the exact same smudge in the exact same place on the seal, and in many cases with the exact same purported notary signature.”
Proper service is both a technical requirement of the legal process and a fundamental issue of fairness. Improper service not only deprives tenants of due process but directly implicates larger concerns of equal access to justice.
Don Resnikoff is a member of Washington Council of Lawyers Issues Committee.