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Law Update

Lawsuit Barred For Failure To Serve Defendant
At Current Address Within Statutory Limitations Period
Despite Attempted Service At Defendant’s Former Address
Nault v. Tirado, No. 2006-548 (May 15, 2007)

Facts: The plaintiff was injured in an automobile collision on November 27, 2002. On November 23, 2005, shortly before the statute of limitations expired, a deputy sheriff attempted to serve the defendant by leaving a copy of the plaintiff’s writ at the Exeter address listed as the defendant’s address on the 2002 accident report. The defendant, however, had moved from that address in January of 2005, and had not lived at the Exeter address since that time. 

The defendant moved to dismiss the lawsuit on the grounds that it was time-barred since it was neither served nor entered with the court prior to November 27, 2005.

The plaintiff objected and submitted evidence that the defendant’s former Exeter address was listed on the town voter registration list, the post office did not have a forwarding address, and argued that service was properly made on the defendant’s “last and usual place of abode.”

The trial court dismissed the action and the plaintiff appealed.

Held:   Affirmed.  Strict compliance with the statutory service of process requirements is necessary in order to ensure that a defendant is given constitutionally sufficient notice of the action and to vest the court with jurisdiction over the defendant.

The term “abode” within RSA 510:2 is meant to refer to the place where the defendant has designated as his “principal place of physical presence for the indefinite future to the exclusion of all others.” Service must be made at the address at which the defendant has been living and is expected to return in time to receive notice of the lawsuit.      

Service at the defendant’s former address was insufficient and the claims were properly dismissed.      


Mike Wallenius




Attorneys at Law

1838 Elm Street, Manchester, NH 03104
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