The concern, as I see it, with allowing substitute (aka "abode") service for a case filed in the Small Claims Division of a justice court is that, unlike the Arizona Justice Court Rules of Civil Procedure Rule 113(a) and the Rules of Civil Procedure for the Superior Courts Rule 4.1(d)(2), the Rules of Small Claims Procedure don't define personal service in that manner. As a matter of fact the rules, specifically Rule 5(b)(2), don't define it at all. This rule reads, in part: "The plaintiff may arrange for personal service on the defendant by a constable, sheriff, or private process server.", while ARS 22-513(b) states "If the defendant cannot be served by registered or certified mail, personal service by a process server or an authorized officer or by any other means pursuant to court rule (emphasis added) may be used."
Absent a statutory or rule definition of personal service the courts may look to other reputable sources, such as Black's Law Dictionary, and not simply reply on a method that is customarily accepted in other divisions. It defines personal service of process as "a term given to the direct and hand to hand delivery of a summons." Hence the reason some courts may be rejecting substitute service for small claims cases.
If personal service of process, as noted by the petitioner, is frequently impracticable for small claims cases, as it is in the Civil Division, a suitable remedy may be to define personal service using language pulled directly from the aforementioned civil rules. Doing so would recognize "substitute" service as a method of personal service of process and allow for the necessary documents to be left "at the individual's residence with a person of suitable age and discretion who lives there."
Craig Wismer
[email protected] 602-372-2000
14264 West Tierra Buena Lane
Surprise, Arizona 85374