Crews v. Sun Solutions AZ LLC

• Court: District Court, D. Arizona
• Decided: January 5, 2024
• Docket: 2:23-cv-01589
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jason Crews, No. CV-23-01589-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Sun Solutions AZ LLC, et al.,

13 Defendants. 14 15 Pending before the Court is Plaintiff’s second ex parte motion for early discovery 16 to discover an address at which Defendant Justin Villalobos can be served. (Doc. 16.) The 17 Court granted Plaintiff’s earlier request to serve a subpoena to T-Mobile for this purpose. 18 (Doc. 14.) T-Mobile responded to the subpoena by indicating that “Villalobos’s number 19 is no longer associated with their services as of October 21, 2023, and has been ported to 20 another carrier”—Cellco Partnership, dba Verizon Wireless (“Verizon”). (Doc. 16-1 at 3.) 21 Plaintiff seeks to subpoena Verizon for the same information and for the same purpose that 22 he previously sought to subpoena T-Mobile. Thus, for the reasons stated in the Court’s 23 November 30, 2023 order as to T-Mobile (Doc. 14), Plaintiff’s motion to subpoena Verizon 24 (Doc. 16) is granted. 25 Also pending before the Court is Plaintiff’s motion for leave to serve Defendant Sun 26 Solutions AZ LLC (“Sun Solutions”) by alternative means. (Doc. 15.) Plaintiff’s motion, 27 memorandum, and supporting exhibits establish that Wesley Siemon, the registered agent 28 for Sun Solutions, listed his address with the Arizona Corporation Commission as 1339 1 SW Los Lagos Vista, Mesa, AZ 85202 (the “Mesa address”) and also listed an email 2 address, seimonster480@gmail.com. (Doc. 15-3 at 1.) On December 18, 2023, Plaintiff’s 3 private investigator called Siemon, who verified that the Mesa address is his correct 4 address. (Doc. 15-1 at 2.) Siemon’s truck has been observed in the driveway of the Mesa 5 address. (Id.) Plaintiff’s process server attempted service at the Mesa address four times, 6 at four different times of day, and each attempt resulted in no answer, although once the 7 screen door was open and a vehicle was present. (Doc. 15-5 at 1.) 8 Plaintiff seeks leave to serve Sun Solutions by posting the service documents on the 9 door of the Mesa address, mailing the service documents to the Mesa address, and emailing 10 the service documents to info@sunsolutions.com. (Doc. 15 at 1.) 11 Rule 4(h)(1) of the Federal Rules of Civil Procedure provides that an unincorporated 12 association in a judicial district of the United States must be served “by delivering a copy 13 of the summons and of the complaint to an officer, a managing or general agent, or any 14 other agent authorized by appointment or by law to receive service of process and—if the 15 agent is one authorized by statute and the statute so requires—by also mailing a copy of 16 each to the defendant” or “in the manner prescribed by Rule 4(e)(1) for serving an 17 individual,” which permits service under state law. Rule 4(i) of the Arizona Rules of Civil 18 Procedure governs unincorporated associations and mirrors the federal rule. 19 Rule 4.1(k) of the Arizona Rules provides for alternative means of service: “If a 20 party shows that the means of service provided in Rule 4.1(c) through Rule 4.1(j) are 21 impracticable, the court may—on motion and without notice to the person to be served— 22 order that service may be accomplished in another manner,” in which case “the serving 23 party must make a reasonable effort to provide the person being served with actual notice 24 of the action’s commencement” and must, at a minimum, “mail the summons, the pleading 25 being served, and any court order authorizing an alternative means of service to the last- 26 known business or residential address of the person being served.” 27 Arizona’s Rule 4.1(k) requires a showing of impracticability. Impracticability in 28 this context requires “something less than a complete inability to serve the defendant” and even “something less than the ‘due diligence’ showing required before service by 2|| publication may be utilized.” Blair v. Burgener, 245 P.3d 898, 901, 903-04 (Ariz. Ct. App. 2010). In the context of Rule 4.1(k), “impracticable” simply means that the traditional 4|| means of service have proved to be “extremely difficult or inconvenient.” Jd. at 903. 5 The Court finds that service has proved impracticable. Service via the proposed || methods and via email to seimonster480@ gmail.com would constitute “a reasonable effort || to provide the [party] being served with actual notice of the action’s commencement.” Ariz. R. Civ. P. 4.1(k)(2). 9 Accordingly, 10 IT IS ORDERED that Plaintiff’s motion (Doc. 15) is granted. 11 ITIS FURTHER ORDERED that service on Sun Solutions may be accomplished || by alternative means. Pursuant to Ariz. R. Civ. P. 4.1(k)(2), Plaintiff shall mail the 13 || summons, the complaint, and this order via certified mail to the Mesa address and via email to info@sunsolutions.com and seimonster480@ gmail.com and shall post the documents 15 || on the door of the Mesa address. 16 IT IS FURTHER ORDERED that Plaintiff's motion to subpoena Verizon (Doc. 17 || 16) is granted. The subpoena, as drafted but directed to Verizon, may be served. 18 Dated this 5th day of January, 2024. 19 20 Lom ee” 21 f □ _o—— Dominic W. Lanza 22 United States District Judge 23 24 25 26 27 28

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