Service by Publication in NC: Due Diligence, Notice, and Default

Service by publication in NC is the method of giving legal notice to a defendant by running an announcement in a qualifying newspaper, and under Rule 4(j1) of the North Carolina Rules of Civil Procedure you may use it only after you have genuinely tried and failed to reach the person through personal delivery, certified or registered mail, or a designated delivery service.¹ Courts treat publication as a last resort because it is the least likely of all the service methods to actually reach the defendant, and they hold plaintiffs to strict standards both before publication begins and after it ends.

When Publication Is Allowed

Rule 4(j1) opens the door to publication only when the defendant “cannot with due diligence be served” by one of the authorized direct methods.¹ A defendant being hard to reach is not enough. A defendant actively dodging the lawsuit is not enough on its own either. You have to show that reasonable efforts to serve the person directly either failed or were impossible.

There is also a jurisdictional limit worth knowing before you spend money on publication. Outside of cases involving property or legal status (in rem or quasi in rem actions under Rule 4(k)), service by publication generally cannot give a North Carolina court personal jurisdiction over an absent defendant.² In a divorce, for example, publication can let the court dissolve the marriage itself but may not support a personal money judgment for alimony against a spouse the court has no personal jurisdiction over.

What Due Diligence Actually Requires

Due diligence is where most publication problems start, and North Carolina appellate courts have built a substantial body of law around it. There is no checklist. Instead, courts look at what the plaintiff knew about the defendant and what steps were reasonable under those specific circumstances.³

One rule is settled: you must use every piece of contact information you already have to try to locate the defendant or arrange proper service. Phone numbers, email addresses, updated mailing addresses provided by someone else, all of it. None of these are themselves valid methods of formal service under Rule 4, but ignoring them is fatal to a later publication effort.³

Two recent cases show how this plays out. In Chen v. Zou (2015), the Court of Appeals set aside a divorce judgment because the husband had been in regular phone and text contact with his wife, knew she was living in New York City, and never asked her for an address so he could serve her. The court said he had made “no effort whatsoever” to locate her for personal service.⁴ In County of Mecklenburg v. Ryan (2022), the court voided a default judgment in a tax foreclosure because the county had the defendant’s email address on file, knew she was wheelchair-bound and legally blind and preferred email, and went straight to publication without ever emailing her.⁵

Note the line the courts draw on email. The statute explicitly says that nothing in the service rules authorizes email as a method of service on the party being served.² You cannot email someone the complaint and call it done. But if you have an email address, you are expected to use it to try to find the person or arrange a proper service. Email to accomplish service, no. Email to locate the defendant, yes, and the failure to try it can sink your publication later.

The Publication Process, Step by Step

Once you can honestly document your due diligence, Rule 4(j1) sets out the mechanics.

Pick a Qualifying Newspaper in the Right County

The newspaper has to qualify for legal advertising under G.S. 1-597 and G.S. 1-598. That means general circulation to actual paid subscribers, admission to U.S. mail in the Periodicals class in the relevant county, and regular weekly publication for at least 25 of the 26 weeks before the first publication date. If no newspaper in the county qualifies, the clerk of superior court can approve one from an adjoining county or the same court district that circulates where needed.⁶

Where you publish geographically is just as important as which newspaper you pick. The notice has to appear in a paper that circulates where you believe the defendant actually is. If you have no idea where the defendant is, you publish in a newspaper in the county where the lawsuit is pending.¹ This is what sank the plaintiff in Chen v. Zou: publishing in a Charlotte newspaper when he knew his wife was in New York City.⁴ For actions involving property, Rule 4(k) simplifies this and allows publication in the county where the action is pending regardless of where the defendant may be.

Run the Notice Three Times, with the Right Content

The notice runs once a week for three consecutive weeks.¹ It must include the name of the court and the title of the action, be directed to the defendant by name, state that a pleading seeking relief has been filed (or must be filed by a certain date) and describe the relief, give the defendant 40 days to respond from the first publication date (or the date the complaint is required to be filed, whichever is later), warn that failure to respond will lead to the plaintiff asking the court for the requested relief, and include the name and address of the plaintiff or the plaintiff’s attorney. In attachment cases, you also include the additional information required by G.S. 1-440.14.²

Mail a Copy Too, If You Have an Address

If you know the defendant’s mailing address or can discover it with reasonable effort, you also have to mail a copy of the notice to that address at or immediately before the first publication.¹ You skip the mailing only if the address genuinely cannot be found with reasonable diligence.

File Proof of Service

After publication finishes, you file proof with the court. G.S. 1-75.10(a)(2) requires two affidavits: one from the newspaper’s publisher (or its printer, foreman, or principal clerk) confirming publication and giving the first and last publication dates, and a separate affidavit from whoever mailed the notice confirming that mailing happened.⁷

Before You Can Get a Default Judgment

Finishing publication and getting no response does not automatically earn you a default judgment. Before the court enters default, you have to file an additional affidavit covering three things: the circumstances that justified using publication in the first place, the information you used to decide where publication should occur, and proof that service was completed as G.S. 1-75.10(a)(2) requires.¹

North Carolina does not require you to get a court order or file a motion before starting publication. You proceed on your own judgment that due diligence has been satisfied, and the court evaluates that judgment later, usually when you ask for default or when the defendant surfaces to challenge the service.¹ All of the risk sits with you: if a court later decides your diligence came up short, the service is void and so is any judgment built on it.

What Happens If Service Is Defective

Because publication statutes are “in derogation of the common law,” North Carolina courts read them strictly.³ Miss any requirement of Rule 4(j1) and the service is defective, which makes any resulting judgment void rather than merely voidable. A void judgment can be set aside under Rule 60(b)(4) at any time, as long as the motion is filed within a “reasonable time” after the affected party learns of the judgment. The one-year deadline that applies to some other kinds of relief does not apply here.⁴

The consequences can be serious even after the case is long over. In Ryan, the court voided a tax foreclosure judgment years after the foreclosure sale, and even though a third-party buyer had bought the property, the defendant was entitled to seek restitution under G.S. 1-108 because the underlying judgment was void.⁵

There is one protection built into the statute for plaintiffs. Under Rule 4(j4), if the defendant actually received timely notice of the lawsuit by any means, that defendant cannot later attack a default judgment by arguing the plaintiff fell short on due diligence for publication.² A defendant who clearly knew about the case cannot exploit a technical publication defect to undo it.

Cases Where Publication Shows Up Most

Publication arises most often when a defendant has disappeared. Divorce and other family law cases are a common setting: one spouse leaves the state or the country and the other needs to move forward. Publication can give the court authority to dissolve the marriage, but as noted above it may not be enough for broader relief that depends on personal jurisdiction.

Tax lien foreclosures are the other frequent context. G.S. 105-374 specifically authorizes publication for property owners who cannot be located, for persons whose names and whereabouts are unknown, and for their possible heirs or assignees, who may even be identified by general description or fictitious names.⁸ Quiet title actions, where a property owner is trying to clear competing claims, also use publication when potential claimants cannot be identified or found.

1
North Carolina General Assembly. G.S. 1A-1, Rule 4
2
North Carolina General Assembly. North Carolina Rules of Civil Procedure, Chapter 1A
3
UNC School of Government Civil Law Blog. Rule 4(j1) Service by Publication and the Due Diligence Requirement
4
FindLaw. Chen v. Zou
5
FindLaw. County of Mecklenburg v. Ryan
6
North Carolina General Assembly. G.S. 1-597
7
North Carolina General Assembly. G.S. 1-75.10
8
North Carolina General Assembly. G.S. 105-374