OK, so you have served your defendant. The allotted time to answer and appear has gone by. You have also served the additional copy of the summons, if applicable. Now it’s time to prepare and submit (or apply for) a judgment by default against the miscreant.
Not so fast.
A couple of things may be standing in your way.
First, note that your court may not even allow a judgment by default to be entered against a defendant if service of process was made by delivery to a suitable age person but that person’s name is not shown on the affidavit of service. Leaving legal documents for a defendant with a “John Doe” or “Jane Doe” may be perfectly legal and proper but if the defendant defaults you may be forced to go back and attempt to serve again. At that point you may have a problem with the 120 day limitation.
Secondly, you’ll need to provide affirmative proof to the court that the defendant is not then currently in the military service. This is done by submitting an affidavit to that effect.
Who makes this affidavit?
Oddly, this is one thing anyone with personal knowledge can state to the court. So even a party to the action can make and execute an affidavit attesting to the non-military service status of a defendant. But this is generally not done.
As a general rule, the affidavit of non-military status is executed by someone who is not a party to the action but has done sufficient research to ascertain the defendant’s status. Often this means that the process server who served the summons has made a statement, in the original affidavit of service, that he or she has ascertained that the defendant was not then in the military service. How? Ostensibly by asking the defendant (if service was made by in-hand delivery) or by asking the recipient (if service was made by delivery to a person of suitable age and discretion) or even by speaking with a neighbor who just happened to be around at the time of service.
We’ve all seen these affidavits. Often it’s a form with some kind of check box and a fill in blank. And I think we all know that we should be looking at those with at least a wee bit of concern. But the problem is that even if true, that checked box statement may not be sufficient. Some courts require that the effort to ascertain the defendant’s military status must be conducted within 20 days of the time you submit (or request) a judgment on default for entry. Oftentimes, the summons was originally served much more than 20 days earlier.
So what to do?
The best way to handle this requirement is also one of the easiest.
After years of operating a closed system, the US Department of Defense has opened up its Manpower Data Center (see https://www.dmdc.osd.mil/appj/scra/scraHome.do). Anyone can go onto the site and, by providing the defendant’s name and social security number, receive a printable response. Attach that response to your own affidavit on defendant’s non-military involvement. True, you’ll need the defendant’s social security number. If you don’t have it, we can ascertain it for you.
Or you can make your life even easier. If Target Research & Investigation has handled the service of process for you, then we will take care of all of this, even the time and expense to ascertain a defendant’s social security number, all at no additional cost to you or your client. The research is done correctly and in a timely manner. What could be better than that?
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