Barket v. Leigh

• Court: District Court, D. Nevada
• Decided: September 24, 2019
• Docket: 2:19-cv-00141
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 STEVEN BARKET, 11 Case No.: 2:19-cv-00141-GMN-NJK Plaintiff(s), 12 ORDER v. 13 (Docket No. 10) FRANK LEIGH, 14 Defendant(s). 15 16 Pending before the Court is Plaintiff’s application to extend time for service and to permit 17 service by publication. Docket No. 10. The motion is properly resolved without a hearing. See 18 Local Rule 78-1. 19 Service by publication is disfavored because substituted service implicates a defendant’s 20 due process rights. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314– 21 15 (1950); Trustees of the Nev. Resort Assoc.—Int’l Alliance of Theatrical Stage Employees & 22 Moving Picture Mach. Operators v. Alumifax, Inc., 2013 U.S. Dist. Lexis. 106456, *2 (D. Nev. 23 July 29, 2013). 24 Service must be made under the law of the forum state or of the state in which service is 25 made. See Fed. R. Civ. P. 4(e)(1). Nevada law permits service by publication if the plaintiff 26 cannot, after due diligence, locate the defendant. See Nev. R. Civ. P. 4.4(c)(1)(a). Due diligence 27 is what is appropriate to accomplish actual notice and is reasonably calculated to do so. See Abreu 28 v. Gilmer, 115 Nev. 308, 313 (1999) (citation omitted). Courts may consider the number of 1}| attempts made to serve the defendant at his residence and other methods of locating the defendant 2|| such as consulting public directories and family members. See, e.g., Price v. Dunn, 106 Nev. 100, 3], 101-103 (1990); Abreu, 115 Nev. at 313; McNair v. Rivera, 110 Nev. 463, 464 (1994), 4 Plaintiff’ s efforts to date do not show sufficient diligence to allow service by publication. 5] Plaintiff has tried to locate Defendant through Internet searches and property records, utility 6|| records, and voter records for counties in and around Omaha, Nebraska, where Plaintiff believes 7|| Defendant resides. Docket No. 10 at 3. Plaintiff has also run a skip-trace report, but the addresses 8] in the report were not good for service. /d. Plaintiff notes that it did serve a “Frank Leigh” in 9] Omaha but it was not Defendant. /d. at 2. Plaintiff also notes that he “has now mailed the 10] Summons and Complaint by certified mail to the best address [he has] for [Defendant].”» Docket 11] No. 11 at 2. Although Plaintiff has made some efforts, it is unclear to the Court why Plaintiff 12|| believes Defendant resides in Omaha and not elsewhere, especially after discovering that the 13} “Frank Leigh” he found in Omaha is not Defendant. Without more, it seems possible that Plaintiff 14]| has simply been trying to locate the wrong Frank Leigh. It is also unclear to the Court—based on 15] counsel for Plaintiff's statement at Docket No. 11 at 2, §[11—whether Plaintiff has just tried, for 16] the first time, to mail the Summons and Complaint by certified mail to the best address for 17| Defendant. All told, Plaintiff has not yet exhausted his options to locate Defendant. 18 For the reasons stated above, Plaintiff’ efforts to serve Defendant to date do not constitute 19} due diligence to warrant allowing service by publication. Accordingly, that request is DENIED 20] without prejudice. The Court will, however, GRANT Plaintiff’s request to extend the deadline to 21|| effectuate service. The Court EXTENDS the deadline to November 7, 2019, see Fed. R. Civ. P. 22|| 4Gm), to enable further efforts to locate and serve Defendant. 23 IT IS SO ORDERED. 24 Dated: September 24, 2019 Z. Nancy J. Koppe 26 United States Magistrate Judge 27 28