TD Professional Services v. Truyo Incorporated

• Court: District Court, D. Arizona
• Decided: January 27, 2022
• Docket: 2:22-cv-00018
• Status: Unknown

Opinion

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

9 TD Professional Services, No. CV-22-00018-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 Truyo Incorporated, et al.,

13 Defendants. 14 15 Before the Court is Plaintiff’s Motion for Alternative Service Pursuant to Rule 16 4(h)(1)(A), F.R.C.P. (the “Motion”). (Doc. 13.) Plaintiff believes Defendants are evading 17 service. (Id. at 2–4.) As a result, Plaintiff seeks alternative means to effectuate service of 18 process as permitted under the Arizona Rules of Civil Procedure. (Id. at 4–5.) 19 Rule 4(e)(1) of the Federal Rules of Civil Procedure provides that individuals may 20 be served by “following state law for serving a summons in an action brought in courts of 21 general jurisdiction in the state where the district court is located . . . .” Fed. R. Civ. 22 P. 4(e)(1). Arizona law enumerates several sufficient methods to serve individuals and 23 unincorporated associations. Ariz. R. Civ. P. 4.1(d), (i). 24 (1) delivering a copy of the summons and the pleading to that individual personally; (2) leaving a copy of each at that 25 individual’s dwelling or usual place of abode with someone 26 of suitable age and discretion who resides there; or (3) delivering a copy of each to an agent authorized by 27 appointment or by law to receive service of process. 28 1 Ariz. R. Civ. P. 4.1(d). If a moving party shows service by those means is 2 “impracticable,” the Court may “order that service [] be accomplished in another 3 manner.” Id. 4.1(k)(1). 4 “There are no Arizona cases interpreting the meaning of ‘impracticable’ as that 5 term is used in [Rule 4.1(k)].” Blair v. Burgener, 226 Ariz. 213, 218 (App. 2010) 6 (formerly Rule 4.1(m)). In Blair v. Burgener, the Arizona Court of Appeals determined 7 the standard of impracticability requires something less than the “due diligence” standard. 8 Id. at 218 (“[T]he showing for alternative service requires something less than a complete 9 inability to serve the defendant because the defendant’s current address is unknown or the 10 defendant completely has avoided service of process.”). Applying that standard, the court 11 deemed personal service in that case to be impracticable because the plaintiff attempted 12 service at the defendants’ place of business and residence at various times on five 13 different days and the process server visited the defendants’ place of business on seven 14 additional days but the defendants were not present. Id. at 219. In addition, the court 15 “approvingly cited a New York case on a similar service issue,” in which “the New York 16 court concluded that three attempts at service on three different days constituted 17 sufficient efforts to warrant alternative means of service.” BMO Harris Bank, N.A. v. 18 D.R.C. Invests., L.L.C., No. CV-13-1692, 2013 WL 4804482, at *4 (D. Ariz. Sept. 9, 19 2013) (citing Blair, 226 Ariz. at 218). 20 Plaintiff is seeking this Court’s permission to serve Defendants by three 21 alternative means. First by a “server [sending] a copy of the Complaint, Summons, Order 22 Authorizing Alternative Service, Corporate Disclosure Statement and Election Regarding 23 Magistrate Judge (“the Package”) by certified mail to corporate headquarters for both 24 corporations.” (Doc. 13 at 5.) Second by a “server [sending] an additional copy of the 25 Package by certified mail to the listed address for the statutory agent, Kailash Somani.” 26 (Id.) And third by a “server [sending] an additional copy of the Package by certified mail 27 to defense counsel’s law firm address.” (Id.) Plaintiff argues service by an alternative 28 method is “clearly justified” because Plaintiff’s efforts “go well beyond the efforts” 1 |] necessary to establish impracticability. Ud. at 4.) 2 The Court finds that Plaintiff has made the requisite showing to justify alternative service. Plaintiff is this case has attempted to serve Defendants nine times on six different days including at home, at work, and through their attorneys. (See id. at 2-3.) What is more, Defendants have a copy of Plaintiff’s complaint, and appear to be evading service. 6|| (Ud. at 2; see id. at 1-3.) Because the “impracticable” requirement of Rule 4.1(Kk) is 7 || satisfied, service by an alternative method is allowed. 8 Accordingly, 9 IT IS ORDERED granting Plaintiff's Motion for Alternative Service Pursuant to 10}} Rule 4(h)(1)(A), F.R.C.P. (Doc. 13). Plaintiff shall make service by alternative means on 11 | both Defendants, as follows: 12 1. A server shall send a copy of the Complaint, Summons, Order Authorizing 13 || Alternative Service, Corporate Disclosure Statement and Election Regarding Magistrate Judge by certified mail to corporate headquarters for both corporations; 15 2. A server shall send an additional copy of said documents by certified mail 16 || to the listed address for the statutory agent, Kailash Somani; and 17 3. A server shall send an additional copy of said documents by certified mail 18 || to the law firm of counsel Hani Sayed. 19 The effective date of service shall be five days after the last of these tasks is 20 || accomplished. 21 IT IS FURTHER ORDERED that Plaintiff's counsel shall file an affidavit upon 22 || completion of service specifying the date and details on which alternative service has 23 || been accomplished. 24 Dated this 27th day of January, 2022. 25 °° WMichak T. $thurle 27 Michael T. Liburdi 28 United States District Judge

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