Armendariz v. Gonzalez

• Court: District Court, D. Nevada
• Decided: February 12, 2025
• Docket: 2:25-cv-00118
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 ROLANDO GUTIERREZ Case No. 2:25-cv-00118-GMN-EJY ARMENDARIZ, an individual; ANA 5 DANIELA AMEZQUITA AVILES, an individual; RICARDO GUTIERREZ ORDER 6 ARMENDARIZ, an individual,

7 Plaintiffs,

8 v.

9 VICTOR M. CEPEDA GONZALEZ, an individual; J. ROMERO MIRABLE, an 10 individual; DOES I through X; and ROE ENTITIES I through X, 11 Defendants. 12 13 Pending before the Court is Plaintiffs’ Motion for an Order to Extend Time to Serve and 14 Allow[] for Alternative Service on Defendant J. Romero Mirabal. ECF No. 7. Plaintiffs’ Motion 15 explains efforts made to serve Defendant Mirabal by two different process servers. ECF Nos. 7-5, 16 7-7. These efforts include (1) identifying and attempting service at Defendant Mirabal’s last known 17 home address (determined to be a bad address for Defendant), (2) database searches seeking to locate 18 a current address for Defendant, (3) phone calls to two telephone numbers identified as associated 19 with Defendant (neither of which allowed for voice mail messages), (4) searches of voter 20 registration, DMV records, and social media, and (5) attempts to search tax records ultimately not 21 publicly accessible. Plaintiffs now seek an extension of time to serve Defendant Mirabal and 22 permission to serve (1) by texting the phone numbers Plaintiffs state do not have voicemail and are 23 not associated with Defendant, (2) sending a letter to an address confirmed by process servers not to 24 be a good address for Defendant, and (3) sending a letter to a third party administrator whose 25 relationship to this case is not explained. ECF No. 7 at 6. 26 First, the Court finds under Federal Rule of Civil Procedure 4(m) good cause exists to extend 27 the period during which Plaintiffs may attempt service on Defendant Mirabal. Second, with respect 1 Procedure 4(e)(1) allows for service following the laws of the state in which the federal court is 2 located. Nevada Rule of Civil Procedure 4.4 allows for alternative service methods upon a motion 3 of a party (i) demonstrating due diligence to locate the defendant, (ii) proposing alternative service 4 methodology, and (iii) explaining why the proposed alternative service meets the requirements of 5 due process. When considering a request to serve a defendant by alternative means the Nevada 6 Supreme Court asks the underlying courts to take into consideration attempts made by a plaintiff to 7 serve a defendant at his known residence, and other methods of locating a defendant, such as 8 consulting public directories. Price v. Dunn, 787 P.2d 785, 786-87 (Nev. 1990), rev. on other 9 grounds, NC-DSH, Inc. v. Garner, 218 P.3d 853 (Nev. 2009) (and noting that Price otherwise 10 remains good law); Abreu v. Gilmer, 985 P.2d 746, 747 (Nev. 1999); McNair v. Rivera, 874 P.2d 11 1240, 1241 (Nev. 1994). Plaintiffs are not required to attempt every permissible means of service 12 of process before requesting an alternative method of service. Neumont Univ., LLC v. Nickles, 304 13 F.R.D. 594, 600 (D. Nev. 2015). 14 The Court finds Plaintiffs have attempted service sufficient to warrant alternative service 15 methods; however, the proposed alternative methods of service do not comport with due process. 16 Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016. Due process requires that a defendant 17 in a civil action be given notice of the action that is reasonably calculated to apprise the defendant 18 of the pendency of the action and afford the defendant an opportunity to present his or her objection. 19 Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). The phone numbers and 20 home address Plaintiffs identify are stated not to be associated with Defendant Mirabal. Thus, 21 mailing a letter to the address and sending text messages to the phone numbers do not appear to be 22 reasonably calculated to apprise Defendant Mirabal of the pendency of this action. A letter to a third 23 party administrator whose relationship to the case is unexplained also does not satisfy due process. 24 While Plaintiffs are not precluded from taking any or all of these steps in an attempt to contact 25 Defendant Mirabal, and while Defendant Mirabal could respond and accept service, the Court cannot 26 conclude, based on the information provided, that the alternative service smethods requests comport 27 with due process. 1 It is not the Court’s job to identify alternative service methods for Plaintiffs. However, the 2 Court notes that alternative service by publication may be appropriate here. A request for such 3 service must provide affidavits, declarations or other evidence demonstrating: (1) the due diligence 4 that was undertaken to locate and serve the defendant; (2) the efforts made to locate and serve the 5 defendant; (3) the defendant’s known or last known contact information; (4) the last known address, 6 the dates during which the defendant resided at the location, and confirmation the plaintiff is unaware 7 of any other address at which the defendant has resided since that time, or at which the defendant 8 can be found. Nev. R. Civ. P. 4.4(b)(2), 4.4(c)(2); see also Eko Brands, LLC v. Houseware Sols., 9 LLC, Case No. 2:20-cv-2076-RCJ-BNW, 2021 WL 4149016, at *2 (D. Nev. Aug. 20, 2021); Gomez 10 v. State Dep’t of Bus. & Indus. Rels., Case No. 2:21-cv-01184-GMN-VCF, 2021 U.S. Dist. LEXIS 11 201074, at *2 (D. Nev. Oct. 19, 2021). A request to serve by publication must also state why service 12 by publication comports with due process and, if service by publication is contemplated, include the 13 proposed language of the summons to be used in the publication, briefly summarizing the claims 14 asserted and the relief sought; and suggest one or more newspapers or other periodicals in which the 15 summons should be published that are reasonably calculated to give the defendant actual notice of 16 the proceedings. Nev. R. Civ. P. 4.4(c)(4)(A). The publication should “be reasonably calculated to 17 give the defendant actual notice of the proceedings.” Id. The service must be published at least once 18 a week for a period of four weeks. Id. 19 Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for an Order to Extend 20 Time to Serve and Allowing for Alternative Service on Defendant J Romero Mirabal (ECF No. 7) 21 is GRANTED in part and DENIED in part without prejudice. 22 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Extend Time to Serve is GRANTED. 23 Plaintiffs have through and including April 14, 2025 to effect service on Defendant Mirabal. 24 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Alternative Service is DENIED 25 without prejudice. Plaintiffs may renew their motion seeking to serve by publication. Such motion 26 27 1 must provide all information required to support the request and a proposed order that addresses all 2 elements of the Nevada Rule of Civil Procedure discussed above. 3 Dated this 12th day of February, 2025. 4

5 ELAYNA J. YOUCHAH 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27