Graff 226507 v. Shinn

• Court: District Court, D. Arizona
• Decided: September 9, 2024
• Docket: 2:20-cv-01179
• Status: Unknown

Opinion

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

9 Bryan Scott Graff, No. CV-20-01179-PHX-ROS (DMF)

10 Plaintiff, ORDER

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 Plaintiff, pursuant to Federal Rule of Civil Procedure 4(e)(1) and Arizona Rule of 16 Civil Procedure 4.1(k)(1), requests the Court serve nonparty nurse Kenya Jordan for her 17 deposition by email or by posting notice on her front door. (Doc. 155). For the reasons that 18 follow, Plaintiff’s motion will be granted, and Plaintiff is also ordered to deliver the 19 subpoena by mail. 20 BACKGROUND 21 Plaintiff hired a private investigator and process server to serve Ms. Jordan for her 22 deposition. (Doc 155 at *2). After a private investigator located an email for Ms. Jordan, 23 Plaintiff emailed Ms. Jordan at this email address and though the message was delivered, 24 Ms. Jordan did not respond. Id. at *2-3. Additionally, Plaintiff hired a process server and 25 attempted service multiple times on Ms. Jordan at the address provided by the private 26 investigator. Id. at *3. Ms. Jordan did not answer the door despite the same car being in her 27 driveway each time service was attempted and the presence of a Ring doorbell camera. Id. 28 Plaintiff now contends that Ms. Jordan is intentionally evading service by not answering 1 the door and requests serving process on Ms. Jordan by posting the deposition subpoena to 2 her front door and sending it to her email at her last known email address in accordance 3 with Arizona Rule 4.1(k)(1). Id. 4 DISCUSSION 5 Rule 4(e)(1) of the Federal Rules of Civil Procedure provides an individual may be 6 served in a judicial district of the United States by: “following state law for serving a 7 summons in an action brought in courts of general jurisdiction in the state where the district 8 court is located or where service is made.” 9 In turn, Rule 4.1(k) of the Arizona Rules of Civil Procedure provides for alternative 10 means of service: "If a party shows that the means of service provided in Rule 4.1(c) 11 through Rule 4.1(j) are impracticable, the court may—on motion and without notice to the 12 person to be served—order that service may be accomplished in another manner.” 13 (emphasis added) Ariz. R. Civ. P. 4.1(k)(1). “If the court allows an alternative means of 14 service, the serving party must make a reasonable effort to provide the person being served 15 with actual notice of the action's commencement" and must, at a minimum, "mail the 16 summons, the pleading being served, and any court order authorizing an alternative means 17 of service to the last-known business or residential address of the person being served." 18 Ariz. R. Civ. P. 4.1(k)(2). 19 Arizona's Rule 4.1(k) requires a showing of impracticability which requires 20 "something less than a complete inability to serve the defendant" and even "something less 21 than the 'due diligence' showing required before service by publication may be utilized." 22 Blair v. Burgener, 226 Ariz. 213, 245 P.3d 898, 901, 903-04 (Ariz. Ct. App. 2010). In the 23 context of Rule 4.1(k), "impracticable" simply means the traditional means of service have 24 proved to be "extremely difficult or inconvenient." Id. at 903. 25 Courts in this District have permitted service by posting on front doors and via email 26 under Arizona Rule of Civil Procedure 4.1(k). See DPG Invs. LLC v. Anderson, No. CV- 27 20-01386-PHXDWL, 2020 WL 8482971, at *3 (D. Ariz. Dec. 15, 2020) (“Plaintiffs’ 28 proposed alternative means of service—posting a copy of the FAC and Summons on the || front door and garage doors . . . as well as via email to Defendant’s last known email 2|| address—constitute ‘a reasonable effort to provide the person being served with actual 3|| notice of the action’s commencement.’”). However, in accordance with Rule 4.1(k)(2), Courts have additionally ordered that papers be sent to defendant’s last-known address. 5|| Salgado v. Synergy Payment Sols. Inc., No. CV-24-00523-PHXDWL, 2024 WL 3299730, 6|| (D. Ariz. June 11, 2024). 7 The Court finds that the traditional means of service have proved to be 8 || impracticable. Plaintiff's proposed alternative means of service, securely placing or posting || the deposition subpoena on her front door and sending it to her last known email address 10 || constitutes "a reasonable effort to provide the person being served with actual notice of the || action’s commencement." Ariz. R. Civ. P. 4.1(k)(2). However, the Court will also order || that the papers be mailed to the defendant’s last known address in accordance with Rule 4.1k)(2). 14 IT IS ORDERED the Motion for Alternative Service (Doc. 155) is GRANTED. 15 IT IS FURTHER ORDERED that service on Kenya Jordan may be accomplished || by 1) sending to Kenya Jordan last known address at 101 Berkshire Circle, Jacksonville, 17 || AR 72076, 2) posting to Kenya Jordan’s front door at the same address, and 3) emailing 18 || the same to the Kenya Jordan’s last known email address. 19 Dated this 9th day of September, 2024. 20 fo - 21 C | . ES . 22 Honorable Ros yn ©. Silver 3 Senior United States District Judge 24 25 26 27 28

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