Toro v. Liberty Mutual Personal Insurance Company

• Court: District Court, D. Arizona
• Decided: February 24, 2025
• Docket: 2:24-cv-01438
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lorraine Falto Toro, et al., No. CV-24-01438-PHX-MTL 10 Plaintiffs, ORDER 11 v. 12 Liberty Mutual Personal Insurance Company, et al., 13 Defendants. 14 15 Before the Court is Plaintiffs’ Motion for Alternative Service on Defendants 16 Stephanie Moore and John Doe Moore Only (Doc. 37). Plaintiffs believe Defendants 17 Stephanie and John Doe Moore (“Defendants”) are evading service. (Id. at 2.) As a result, 18 Plaintiffs seek alternative means to effectuate service of process as permitted under the 19 Arizona Rules of Civil Procedure. (Id.) 20 Rule 4(e)(1) of the Federal Rules of Civil Procedure provides that individuals may 21 be served by “following state law for serving a summons in an action brought in courts of 22 general jurisdiction in the state where the district court is located . . . .” Fed. R. Civ. 23 P. 4(e)(1). Arizona law enumerates several sufficient methods to serve individuals and 24 unincorporated associations. Ariz. R. Civ. P. 4.1(d), (i). 25 (1) delivering a copy of the summons and the pleading to that individual personally; (2) leaving a copy of each at that 26 individual’s dwelling or usual place of abode with someone of 27 suitable age and discretion who resides there; or (3) delivering a copy of each to an agent authorized by appointment or by law 28 to receive service of process. 1 Ariz. R. Civ. P. 4.1(d). If a moving party shows service by those means is “impracticable,” 2 the Court may “order that service [] be accomplished in another manner.” Id. 4.1(k)(1). 3 “There are no Arizona cases interpreting the meaning of ‘impracticable’ as that term 4 is used in [Rule 4.1(k)].” Blair v. Burgener, 226 Ariz. 213, 218 (App. 2010) (formerly 5 Rule 4.1(m)). In Blair, the Arizona Court of Appeals determined the standard of 6 impracticability requires something less than the “due diligence” standard. Id. at 218 7 (“[T]he showing for alternative service requires something less than a complete inability 8 to serve the defendant because the defendant’s current address is unknown or the defendant 9 completely has avoided service of process.”). Applying that standard, the court deemed 10 personal service was impracticable because the plaintiff attempted service at the 11 defendants’ place of business and residence over five different days, and a process server 12 visited the defendants’ place of business on seven different occasions. See id. at 219. In 13 addition, the court “approvingly cited a New York case on a similar service issue,” in which 14 “the New York court concluded that three attempts at service on three different days 15 constituted sufficient efforts to warrant alternative means of service.” BMO Harris Bank, 16 N.A. v. D.R.C. Invests., L.L.C., No. CV-13-1692, 2013 WL 4804482, at *4 (D. Ariz. Sept. 17 9, 2013) (citing Blair, 226 Ariz. at 218). 18 If alternative service is appropriate, the alternative method “must also comport with 19 constitutional notions of due process.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 20 1016 (9th Cir. 2002). Alternative service is constitutional when it is “reasonably calculated, 21 under all the circumstances, to apprise interested parties of the pendency of the action and 22 afford them an opportunity to present their objections.” Id. at 1016-17 (quoting Mullane v. 23 Cent. Hanover Bank & Tr., Co., 399 U.S. 306, 314 (1950)). 24 Plaintiffs are seeking the Court’s permission to serve Defendants by three 25 alternative means. First, by posting the summons, first amended complaint, and a copy of 26 this Court’s order to Defendants’ address. (Doc. 37 at 2.) Second, by sending the 27 documents through certified mail. (Id.) And finally, by sending the documents through first 28 class mail. (Id.) Plaintiffs argue service by alternative means “is necessitated by good cause 1 and based on [an] inability to serve [Defendants] to date—despite several attempts and 2 diligent investigation.” (Id.) 3 The Court finds Plaintiffs have met the “impracticable” requirement of Rule 4.1(k). 4 Plaintiffs have attempted to serve Defendants ten times on ten different days. (Doc. 37-2 5 at 2; Doc. 37-3 at 2.) While attempting to serve Defendants, process servers noticed 6 packages with Defendants’ names near the front door—which were gone during later 7 attempts to serve—and a vehicle matching the one on Defendants’ MVD report. (Doc. 37-2 8 at 2; Doc. 37-3 at 2.) That is enough to show the traditional means of service are 9 impracticable. See BMO Harris Bank, N.A., 2013 WL 4804482, at *4. 10 The Court also finds the methods of service proposed by Plaintiffs meets the 11 constitutional requirements. Publication and mailing have previously been authorized as 12 alternative means of service. See, e.g., Rio Props., Inc., 284 F.3d at 1016. Because packages 13 bearing Defendants’ names and their registered vehicles have been observed at the address, 14 it is “reasonably calculated under all the circumstances” to effectuate service through 15 posting and mailing the documents to the address. See id. at 1016-17. Therefore, Plaintiffs 16 have made the requisite showing to justify alternative service. 17 Accordingly, 18 IT IS ORDERED granting Plaintiffs’ Motion for Alternative Service on 19 Defendants Stephanie Moore and John Doe Moore Only (Doc. 37). Plaintiffs shall make 20 service by alternative means on Defendants as follows: 21 (1) A process server shall post a copy of the first amended complaint, 22 summons, and a copy of this Order at Defendants’ address. 23 (2) A process server shall send additional copies of the documents by 24 certified mail to Defendants’ address. 25 (3) A process server shall send additional copies of the documents by first 26 class mail to Defendants’ address. 27 . . . . 28 . . . . 1 IT IS FURTHER ORDERED the effective date of service shall be five days after the last of the abovementioned tasks is accomplished. 3 IT IS FINALLY ORDERED Plaintiffs shall file an affidavit upon completion of 4|| service specifying the date and details on which alternative service was accomplished. 5 Dated this 24th day of February, 2025. 6 . 7 Wichace T diburde 8 Michael T. Liburdi 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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