Longus v. Holben

5 Va. Cir. 57, 1982 Va. Cir. LEXIS 26

• Court: Arlington County Circuit Court
• Decided: July 8, 1982
• Docket: Case No. (Law) 22021
• Status: Published

Opinion

By JUDGE WILLIAM L. WINSTON

The defendant has made a Motion to Dismiss in this case based upon the language contained in the last paragraph of Rule 3:3 of the Rules of the Virginia Supreme Court. This rule requires the court to find as a fact before judgment may be entered that due diligence has been used by the plaintiff to have timely service upon the defendant where more than a year has passed between the filing of suit and the service of process.

Here, suit was filed on September 24, 1980. Process was returned "Not Found" on September 29, 1980, alias process was issued on April 2, 1982, and served upon the defendant on April 12, 1982.

I am of the opinion that if an alternative method of obtaining service of process was readily available to the plaintiff and not used, then due diligence was not exercised and the Motion should be granted.

Sec. 8.01-307(2), Code, defines "Non-Resident" to include any person against whom an order of publication could issue under Sec. 8.01-316. Where such is the fact, service may then be had under Secs. 8.01-308 and 8.01-310 of Title 8.01.

This mode of service was available to the plaintiff in this case and the Motion to Dismiss should be and hereby is granted.