The Ohio Civil Rules provide for service of process to be perfected via multiple methods, one being U.S. certified mail. Civ.R. 4.1(A)(1)(a). Certified mail service is a preferred method of service for many Ohio attorneys because it is cost-effective, simple, relatively quick, and typically successful. This method of service is deemed perfected upon the “return receipt signed by any person” and requires a U.S. postal employee to “show to whom delivered, date of delivery, and address where delivered.” Id. In ordinary times, as long as the return receipt, commonly referred to as the “green card”, is returned to the clerk signed and dated by any individual, service is deemed complete.
However, in a post-2020 world, we are living in times anything but ordinary. Social distancing has become the norm and forced many businesses to change their daily habits of operation. This includes the USPS. Since 2020, to accommodate for social distancing practices, the USPS no longer requires physical signatures by a recipient when delivering certified mail packages. United States Postal Service, Covid-19 Continuity of Operations Update (Mar. 20, 2020), https://about.usps.com/newsroom/service-alerts/pdf/usps-continuity-of-operations-03-20-2020.pdf (accessed July 27, 2022). Instead, due to new USPS protocols, mail carriers have been completing the signatures for certified mail on their own. Markings such as “C-19” or “Covid-19” or simply “Covid” have been applied to the signature line on certified mail green cards. Many times, the certified mail packages are marked with the Covid-19-affiliated notation and left in the mailbox of the recipient, with no actual service rendered. This is problematic and has caused headaches for attorneys across the state for the last two years.
Proper practice of this new post-2020 USPS protocol matters because it affects the validity of service under the Ohio Civil Rules. At face value, it would appear the returned green cards with a Covid-affiliated notation by the USPS postal worker meets the requirements of Civ.R. 4.1. However, in practice the new operations can leave many defendants unaware of a pending lawsuit—a direct opposite of the intent of the rule, and even more seriously, a violation of basic constitutional rights.
Under the new USPS protocol, USPS postal employees are permitted to sign the certified mail return receipts with a Covid-affiliated notation instead of a recipient. Id. But there are still certain requirements that must be met to deem these notations valid. When delivering the certified mail package, the USPS mail carrier must first knock on the recipient’s door and if answered, maintain a safe distance between themselves and the door-answerer. Id. Next, the USPS mail carrier must ask for that person’s first initial and last name. Id. While the protocol does not mention it specifically, this is presumably when the USPS mail carrier would write the first initial and last name in the signature space for the certified mail. Id. If there is no answer at the recipient’s address, the USPS mail carrier must follow the normal “notice left” procedures and cannot sign the certified mail return receipt. Id.
The central purpose of the signature requirement in Civ.R. 4.1 is to prove an actual person received service. The “actual person” requirement under the language of the rule is to be understood broadly and does not limit signature to the addressee (i.e., the defendant) or any specific person. For example, if the defendant is the homeowner, but the housekeeper answers the door, the housekeeper can serve as signee and certified mail service will be deemed complete under Civ.R. 4.1. If no actual person receives the certified mail package, service cannot be deemed completed, and a USPS postal employee cannot sign and return the certified mail return receipt.
This exact issue was raised in a recent First District case. In CUC Properties VI, LLC v. Smartlink Ventures, Inc., the USPS postal employee personally marked two different certified mail packages containing the complaint and summons with “Covid 19” and “C19” but did not write anything else, including the recipient’s first initial and last name. 2021-Ohio-3428, 178 N.E.3d 556 (1st Dist.). The First District ruled the “Covid 19” and “C19” markings were not proper Civ.R. 4.1 signatures because in no event could they serve as “signed” or a “signature” of the “anyone” requirement of Civ.R. 4.1. Id. at ¶ 10. Problematic for the court was the USPS postal workers dual role of both deliverer and recipient. Id. The First District also noted the USPS postal employee did not follow the USPS’ Covid-19 response protocols by asking for and jotting down the recipient’s first initial on the signature line. Id. The First District made it clear all USPS postal employees attempting to deliver certified mail packages must first obtain the identity of the recipient and then apply a Covid-affiliated notation to deem the certified mail return receipt valid. Id. The First District also pointed out the Supreme Court of Ohio’s promulgation of In re Tolling of Time Requirements Imposed by Rules Promulgated by Supreme Ct. & Use of Tech., which permitted local courts to waive in-person service of process. 158 Ohio St.3d 1447, 2020-Ohio-1166, 141 N.E.3d 974. Unfortunately for the CUC Properties appellant, Hamilton County had not waived the requirement for in person service. CUC Properties at ¶ 14.
In contrast, the Second District tackled the validity of certified mail service in Cincinnati Insurance Co. v. Hall. 2d Dist. Montgomery No. 29288, 2022-Ohio-1112. In that case, the certified mail return receipts also notated “C 19” but was accompanied with additional writing deemed “minimally sufficient” to qualify as a signature of the recipient and to show that someone actually received the certified mail. Id. at ¶ 7. Even though the Covid-affiliated notation was on the certified mail return receipt, the addition of the signature of a presumed recipient created a rebuttable presumption of valid service. Id. This situation was different than that in CUC Properties because in that case, the only markings on the certified mail return receipt were the Covid-affiliated notations and nothing else.
Why does this distinction matter? When a defendant has been served but fails to answer or otherwise defend against a complaint filed against them, the plaintiff can immediately seek and be granted the judgment sought in the complaint. This is called default and it is a powerful tool. In essence, if a defendant fails to take any action after they have been properly served, a judgment can be entered against them without their participation in the lawsuit. Importantly, default cannot be granted if there is no proper service.
Prior to the CUC Properties decision, many courts across the state were deeming the returned green cards signed with only a Covid-affiliated notation as proper service (Pickaway County Common Pleas, Juvenile Division; Knox County; Woods County). While some of the returned certified mail receipts may have been valid, there was a risk of a defendant never technically receiving service even though the docket shows service completed. The technicality remains unbeknownst to a plaintiff and inadvertently enables judgment to be sought via default.
Plaintiffs should be wary before jumping to filing a motion for default. The Supreme Court of Ohio Commission on Rules of Practice and Procedure recognizes this issue and does not currently advise revisions to the Civil Rules but does encourage all Clerks of Court to review the validity of certified mail receipts. Ohio Judicial Conference, An Open Letter to Clerks of Court, the Bench, and the Bar of Ohio, http://www.ohiojudges.org/letter-on-certified-mail (accessed July 27, 2022). This is especially relevant when deciding on a motion for default. Some judges have expressly stated they will not accept C-19 services as a basis for default judgment.
If you have a question or concern about service in your case, regardless if you are the plaintiff or defendant, our experienced litigation attorneys can help ease your mind and understanding of the current state of the law.
Colleen R. Vance