Thornton v. Portola Del Sol Operator, LLC

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Case No. 2:21-cv-1123-APG-BNW 6 United States of America Ex rel. Peggy Thornton, et al., 7 Order re [69] Plaintiff, 8 v. 9 Portola Del Sol Operator, LLC, et al., 10 Defendants. 11 12 13 Before the Court is Plaintiff’s motion for service by publication. ECF No. 69. The Court 14 finds Plaintiff meets the requirements for service by publication. Therefore, the motion will be 15 granted. 16 I. Background. 17 This action is brought under the False Claims Act the False Claims Act ("FCA"), 31 18 U.S.C. §§ 3729 and 3730(b)(l). Plaintiff has been unable to serve Rene Richardson, one of the 19 Defendants in this action. 20 Plaintiff asserts she has made several attempts to locate Rene Richardson. For example, 21 she hired Junes Process Service who unsuccessfully attempted to locate Defendant Rene 22 Richardson. In addition, Plaintiff asserts that Junes Process Service ran a skip trace, searching for 23 information pertaining to Defendant Rene Richardson and was unable to identify information 24 pertaining to her. In addition, Plaintiff represents Junes Process Service attempted service at three 25 Nevada properties managed by Defendant Apartment Management Consultants, LLC (whom 26 Plaintiff believes to be her employer) but could not locate Defendant Rene Richardson. Moreover, 27 Plaintiff asserts that she hired a Utah process server to attempt service at the Defendant 1 Lastly, Plaintiff represents that Rene Richardson’s address is unknown, and after due diligence, 2 cannot be found. 3 II. Service by publication 4 The Constitution does not require any particular means of service of process. Rio Props., 5 Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1017 (9th Cir. 2002) (citing Mullane v. Central Hanover 6 Bank & Trust Co., 339 U.S. 306, 314 (1950)). Instead, it requires only that service “be reasonably 7 calculated to provide notice and an opportunity to respond.” Id. To that end, service of process is 8 governed by Rule 4 of the Federal Rules of Civil Procedure. 9 Rule 4(e) governs service of individuals located within a judicial district of the United 10 States. FED. R. CIV. P. 4(e). It provides that service is proper by serving an individual in 11 accordance with law of the state where the district court is located. FED. R. CIV. P. 4(e)(1). This 12 Court is located in the District of Nevada. The Nevada Rules of Civil Procedure (“NRCP”), in 13 turn, allow for service by publication. NRCP 4.4(c). 14 A litigant who desires to effect service by publication must meet eight requirements. 15 NRCP 4.4(c).1 The litigant must (1) establish that “the service methods provided in [NRCP] 4.2, 16

17 1 NRCP 4.4 provides: (c) Service by Publication. If a party demonstrates that the service methods provided in Rules 4.2, 4.3, and 18 4.4(a) and (b) are impracticable, the court may, upon motion and without notice to the person being served, direct that service be made by publication. 19 (1) Conditions for Publication. Service by publication may only be ordered when the defendant: (A) cannot, after due diligence, be found; 20 (B) by concealment seeks to avoid service of the summons and complaint; or (C) is an absent or unknown person in an action involving real or personal property under Rule 4.4(c)(3). 21 (2) Motion Seeking Publication. A motion seeking an order for service by publication must: (A) through pleadings or other evidence establish that: 22 (i) a cause of action exists against the defendant who is to be served; and (ii) the defendant is a necessary or proper party to the action; 23 (B) provide affidavits, declarations, or other evidence setting forth specific facts demonstrating the efforts that the plaintiff made to locate and serve the defendant; 24 (C) provide the proposed language of the summons to be used in the publication, briefly summarizing the claims asserted and the relief sought and including any special statutory requirements; 25 (D) suggest one or more newspapers or other periodicals in which the summons should be published that are reasonably calculated to give the defendant actual notice of the proceedings; and 26 (E) if publication is sought based on the fact that the defendant cannot be found, provide affidavits, declarations, or other evidence establishing the following information: 27 (i) the defendant’s last-known address; (ii) the dates during which the defendant resided at that location; and 1 4.3, and 4.4(a) and (b) are impracticable”;2 (2) demonstrate that the defendant cannot, after due 2 diligence, be found, or that the defendant seeks to avoid service of process through concealment; 3 (3) establish through pleadings or other evidence that a cause of action exists against the 4 defendant; (4) demonstrate that the defendant is a necessary or proper party to the action; (5) set 5 forth specific facts demonstrating the efforts plaintiff made to locate and serve the defendant; 6 (6) provide the proposed language of the summons to be used in the publication, briefly 7 summarizing the claims asserted and the relief sought; (7) suggest one or more newspapers in 8 which the summons should be published that are reasonably calculated to give the defendant 9 actual notice; and (8) provide the defendant’s last-known address, the dates during which 10 defendant lived at that address, and confirmation that plaintiff is unaware of any other address at 11 which defendant has resided since that time or at which defendant can be found. NRCP 4.4(c). 12 Here, the Court will grant Plaintiff’s motion because it satisfies the eight requirements 13 imposed by NRCP 4.4(c). Regarding the first requirement, Plaintiff has established that the 14 service methods in NRCP 4.2, 4.3, 4.4(a), and 4.4(b) are impracticable. Beginning with NRCP 15 4.2, it is evident that personal or substitute service upon Rene Richardson is impracticable at this 16 juncture because Plaintiff diligently attempted to locate her and her current dwelling but to no 17 avail. Service under NRCP 4.3 is likewise impracticable because that provision governs service 18 of persons located outside Nevada or the United States. Here, Plaintiff’s current dwelling place is 19 unknown. Therefore, service under NRCP 4.3 impracticable. Further, service under NRCP 4.4(a) 20 is inapplicable and therefore impracticable because there exists no statute that requires service 21 upon Rene Richarson in a particular manner. Finally, service under NRCP 4.4(b) is also 22 impracticable. This Court has previously determined that NRCP 4.4(b) allows for service by 23 email. See Equity Title v. Gazlay, No. 2:19-cv-00845-GMN-BNW, 2020 WL 1044009, at *2 (D. 24

25 2 NRCP 4.2 tracks federal Rule 4(e)(2) and permits service of an individual by either delivering a 26 copy of the summons and complaint to the individual personally, leaving the copies at the individual’s dwelling with a person of suitable age and discretion, or delivering the copies to an agent authorized by appointment or by law to 27 receive service of process. NRCP 4.2(a); FED. R. CIV. P. 4(e)(2). NRCP 4.3 governs service of individuals located outside Nevada or outside the United States. NRCP 4.4(a) governs service in a manner prescribed by statute. And 1 Nev. Mar. 3, 2020). However, it does not appear this information is available to Plaintiff. Thus, 2 Plaintiff has the first requirement because she has shown that the service methods under NRCP 3 4.2, 4.3, 4.4(a), and 4.4(b) are impracticable. 4 Additionally, the Court finds that Plaintiff has satisfied the second, fifth, and eighth 5 requirements. Plaintiff’s motion and its supporting affidavits demonstrate that she hired a process 6 server to try to identify Rene Richardson’s residence. The process server ran a skip trace and 7 attempted service at three Nevada properties managed by Defendant Apartment Management 8 Consultants, LLC (whom Plaintiff believes to be her employer). In addition, Plaintiff hired a Utah 9 process server to attempt service at the Defendant Apartment Management Consultants, LLC, 10 headquarters in Utah. Plaintiff, therefore, establishes NRCP 4.4(c)’s second, fifth, and eighth 11 requirements because it: shows that she exercised due diligence but could not locate Rene 12 Richardson; sets forth specific facts demonstrating her efforts to locate Richardson; and 13 establishes that Plaintiff is unaware of any other address where Richardson resides at this time. 14 Regarding the third requirement, a cause of action is “[a] group of operative facts giving 15 rise to one or more bases for suing” or a “legal theory of a lawsuit.” Cause of Action, BLACK’S 16 LAW DICTIONARY (11th ed. 2019). Plaintiff’s pleading sufficiently establishes that a cause of 17 action exists against Richardson. 18 Further, the Court finds that, based on Plaintiff’s complaint, Richardson is a necessary and 19 proper party to this matter. Thus, Plaintiff meets the fourth requirement, too. 20 Plaintiff likewise meets the sixth requirement. NRCP 4.4 provides that a litigant who 21 desires to serve her adversary by publication must “provide the proposed language of the 22 summons to be used in the publication, briefly summarizing the claims asserted and the relief 23 sought[.]” NRCP 4.4(c)(2)(C). Thus, NRCP 4.4 speaks to the content of the summons. However, 24 the required content of summonses issued by the federal court is governed by Federal Rule of 25 Civil Procedure 4. See Fed. R. Civ. P. 4(a). Rule 4 is consonant with the Rules Enabling Act and 26 the U.S. Constitution because it does not “abridge, enlarge, or modify any substantive right.” See 27 28 U.S.C. § 2072; see also Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003). 1 || 518 U.S. 415, 427 n.7 (1996). Accordingly, Rule 4 will govern the content of the summonses 2 || issued in this case and the Court will not ask Plaintiff to modify the summons already issued for 3 || Richardson. 4 Finally, Plaintiff meets NRCP 4.4(c)’s seventh requirement because she suggested that the 5 |} complaint and summons be published in n the Las Vegas Review-Journal, which is a newspaper 6 || of general circulation printed in Las Vegas, Clark County, Nevada. 7 In sum, this Court will grant Plaintiff's motion to serve Rene Richardson by publication in 8 || accordance with NRCP 4.4(c) and Federal Rule 4(e)(1). Additionally, however, Nevada law 9 || enables the Court to order Equity Title “to make reasonable efforts to provide additional notice . . 10 || . to a defendant using other methods of notice, including certified mail, telephone, voice message, 11 || email, social media, or any other method of communication.” NRCP 4.4(d)(1). Thus, this Court 12 || will also order that Plaintiff see if it can locate an email address for Rene Richardson and send the 13 || summons and complaint to any such email addresses. 14 |} 1. Conclusion. 15 IT IS THEREFORE ORDERED that Plaintiff’?s motion (ECF No. 69) is GRANTED. 16 IT IS FURTHER ORDERED that Plaintiff must publish the summons and complaint in 17 || the Las Vegas Review Journal at least once a week for a period of four weeks. Service will be 18 || deemed complete four weeks from the date of the first publication. 19 IT IS FURTHER ORDERED that Plaintiff must attempt to find an email address for Rene 20 || Richardson and send her a copy of the summons and complaint to any such email addresses. 21 DATED: September 29, 2023. 22 EK gam Ls Use patn BRENDA WEKSLER 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28