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Fairway Restaurant Equipment Contracting, Inc. v. Makino

United States District Court, D. Nevada

April 10, 2014

FAIRWAY RESTAURANT EQUIPMENT CONTRACTING, INC., Plaintiff,
v.
KAKU MAKINO, JOON HO HA; DOE DEFENDANTS 1 through 10; and ROE ENTITIES 1 through 10, Defendants.

ORDER

NANCY J. KOPPE, Magistrate Judge.

Before the Court is Plaintiff's Ex Parte Motion to Extend Time for Service (Docket No. 11) and Motion for Leave to Serve by Publication (Docket No. 14), each of which was filed on March 21, 2014. The Court finds this matter properly resolved without a hearing. See Local Rule 78-2. For the reasons discussed below, the Motion to Extend Time for Service is hereby GRANTED. For the reasons discussed below, the Motion for Leave to Serve by Publication is hereby DENIED without prejudice.

I. BACKGROUND

On November 21, 2013, Plaintiff Fairway Restaurant Equipment Contract, Inc. filed its Complaint in this Court. Docket No. 1. Central to Plaintiff's allegations in this case is the existence of "a substantial debt" owed by Makino Premium Outlet LV, LLC ("Makino Premium")[1] to Plaintiff. Id. at 3. Following a 2009 jury trial in Nevada State Court, Plaintiff obtained a judgment against Makino Premium. Id. at 4. In the present matter, Plaintiff alleges that, as it was seeking to enforce this judgment, Defendant Makino and Defendant Ha (collectively, "Defendants") caused the assets of Makino Premium to be transferred to Defendants and others for the purpose of defrauding Plaintiff as Makino Premium's creditor. Id. at 3.

Despite multiple attempts at Defendant Makino's last-known address, [2] Plaintiff has not been able to complete service on Defendant Makino.[3] Plaintiff has also not been able to complete service on Defendant Ha. Plaintiff asserts that Defendant Ha "may be residing in Sherman Oaks, California[, ]" but has not yet attempted service at this California address.[4] See Docket No. 11, at 2-3.

A. Service Attempts on Defendant Makino

Plaintiff's first of twelve attempts at service on Defendant Makino took place on February 12, 2014, at his last-known address of 3736 Lindell Dr., Las Vegas, NV 89103. See Docket No. 11, at 16-17. Upon attempting service, however, the process server was unable to locate Defendant Makino and, therefore, efforts to serve process on Defendant Makino failed. Id. Thereafter, Plaintiff conducted additional database searches, including restricted access databases, Clark County public records searches, Nevada Justice Court and District Court records searches, and a search of the Nevada Department of Motor Vehicles. See Docket No. 11, at 6-9. Those searches provided additional residential and business address information, including eight addresses associated with Defendant Makino, seven of which are located in Las Vegas. Id. There is no record that Plaintiff ever attempted to serve Defendant Makino at any of these other addresses. See, e.g., Docket No. 11, at 16-17.

B. Service Attempts on Defendant Ha

Plaintiff's first of three attempts at service on Defendant Ha took place on February 12, 2014, at 3736 Lindell Dr., Las Vegas, NV 89103.[5] See Docket No. 11, at 19. Upon attempting service, however, the process server was unable to locate Defendant Ha, and, therefore, efforts to serve process on Defendant Ha failed. Id. Thereafter, Plaintiff conducted additional database searches, including restricted access databases, Clark County public records searches, Nevada Justice Court and District Court records searches, a search of the Nevada Department of Motor Vehicles, and a national database search. See Docket No. 11, at 12-14. The national database search provided a possible current address for Defendant Ha of 4533 Vista Del Monte Ave., #102, Sherman Oaks, CA 91403. Id. at 13. Plaintiff concedes that it has not yet attempted service on Defendant Ha at this California address. See Docket No. 11, at 3, 14.

II. DISCUSSION

A. Extending Service Period

Rule 4(m) of the Federal Rules of Civil Procedure provides that a defendant must be served within 120 days after a complaint is filed. Fed.R.Civ.P. 4(m). The rule also provides that if service is not timely made, the Court "must dismiss the action without prejudice against that defendant or order that service be made within a specified time.... If the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Id. "As a general matter, a showing of good cause requires more than simple inadvertence, mistake of counsel, or ignorance of the Rules of Civil Procedure." Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Monroe, 2011 WL 383807, *1 (D. Nev. Feb. 2, 2011); citing e.g., Martin v. Longbeach, 246 F.3d 674 (9th Cir. 2000); McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992) (overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)). "At a minimum, good cause means excusable neglect." Martin, 246 F.3d at 674.

Here, Plaintiff has diligently attempted to serve Defendant Makino at his last-known address in Las Vegas, Nevada. Though Plaintiff has been unable to complete service at this address, Plaintiff has located through diligent inquiry, several additional Las Vegas addresses associated with Defendant Makino which may prove fruitful.

Plaintiff has also unsuccessfully attempted to serve Defendant Ha at his last-known address in Las Vegas, Nevada. Plaintiff's national database inquiry has yielded a potential current California address for Defendant Ha, though Plaintiff has not yet attempted service at this address. Plaintiff ...


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