Employee Painters' Trust v. Dahl Construction Services Inc

Opinion

11 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 12 AT SEATTLE 13

14 EMPLOYEE PAINTERS’ TRUST et al., CASE NO. C19-1541-RSM

15 Plaintiffs, ORDER GRANTING LEAVE TO SERVE BY 16 PUBLICATION AND BY MAIL v. 17 DAHL CONSTRUCTION SERVICES, 18 INC., et al., 19 Defendants. 20

21 This matter comes before the Court on Plaintiffs’ ex parte Motion for leave to serve 22 Defendants Dahl Construction Services, Inc. (“Dahl Construction”) and Jack Allen Dahl by 23 publication and by mail. Dkt. #11. Federal Rule of Procedure 4(e) allows a plaintiff to effect 24 25 service “pursuant to the law of the state in which the district is located.” Fed. R. Civ. P. 4(e)(1). 26 Washington law provides: 27 When the defendant cannot be found within the state, and upon the filing of an 28 affidavit of the plaintiff, his agent, or attorney, with the clerk of the court, stating that he believes that the defendant is not a resident of the state, or cannot be found 1 therein . . . the service may be made by publication of the summons . . . in any of 2 the following cases:

3 (2) When the defendant, being a resident of this state, has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps 4 himself concealed therein with like intent; 5 RCW 4.28.100(2). This provision also extends to service by mail. See Rolf v. United States, No. 6 C06-785-MJP, 2007 WL 445449, at *5 (W.D. Wash. Feb. 6, 2007) (“Washington law authorizes 7 8 substitute service by mail in the same circumstances justifying service by publication.”). 9 Before a court may allow service by publication or by mail, a plaintiff must make an 10 honest and reasonable effort to serve the defendant by personal service. Canal Ins. Co. v. 11 Mengeste, No. C18-01833-RAJ, 2019 WL 2491951, at *1 (W.D. Wash. June 14, 2019) (citing 12 13 Carson v. Northstar Development Co., 814 P.2d 217 (Wash. App. 1991)). Accordingly, an 14 affidavit supporting service by publication or mail must identify the steps taken to personally 15 serve the defendant and should demonstrate reasonably diligent efforts to effect service. Id. 16 (citing Charboneau Excavating, Inc. v. Turpinseed, 75 P.3d 1011 (2003)). A plaintiff “need not 17 exhaust all conceivable means of personal service” before a court may authorize an alternative 18 19 service method. Carson, 814 P.2d at 221 (emphasis in original). Rather, a plaintiff “need only 20 follow up on that information possessed by the plaintiff which might reasonably assist in 21 determining a defendant’s whereabouts.” Id. 22 Here, Plaintiffs have made multiple unsuccessful attempts to personally serve Mr. Dahl 23 and Dahl Construction using a process server. Plaintiffs attempted to serve Defendants at four 24 25 separate addresses, including the company address for Dahl Construction registered with the 26 Washington Secretary of State and Washington State Department of Labor & Industries for 27 service of summons. See, e.g., Dkts. #11-1 at 2-4; #11-2 at 2-4. At each location, the process 28 server attempted to glean information from neighbors or the current resident on Mr. Dahl’s 1 2 whereabouts but was unsuccessful. Dkts. #11-2 at 2-4, #11-3 at 2-4; #11-4 at 2; #11-5 at 2. 3 Plaintiffs state that they have conducted a diligent and thorough search of public records for 4 alternate addresses with no success. Dkts. #11-6 at 2; #11-7 at 2. It appears that Plaintiffs have 5 been unable to locate Mr. Dahl or determine his current addresses and have now exhausted their 6 means to personally serve Mr. Dahl and Dahl Construction. 7 8 Accordingly, having reviewed the briefing and relevant record, the Court finds that 9 Plaintiffs have satisfied the conditions for service by publication and by mail. Plaintiffs’ Motion 10 for Leave to Serve by Publication and by Mail, Dkt. #11, is GRANTED. Plaintiffs may therefore 11 accomplish service by publication and by depositing copies of the summons, complaint, and this 12 13 Order in the United States Post Office directed to Defendants at their addresses. 14 15 DATED this 21st day of November 2019. 16 A 17 18 RICARDO S. MARTINEZ 19 CHIEF UNITED STATES DISTRICT JUDGE

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