United States District Court, D. Nevada
(Mtn to Deem Complaint Served - Dkt. #5) (Mtn to Extend Time to Serve - Dkt. #6)
PEGGY A. LEEN, Magistrate Judge.
This matter is before the court on Plaintiff Brandi Gaines' Motion to Deem Complaint Served or In the Alternative Motion to Serve by Publication (Dkt. #5) filed May 2, 2014, and Motion to Enlarge Time to Serve Complaint (Dkt. #6) filed May 22, 2014. The court has considered the Motions.
Plaintiff filed her Complaint (Dkt. #1) on January 22, 2014, alleging claims against Defendant PDL Recovery Group, LLC ("PDL"), a New York limited liability company whose business includes collecting debt. The Complaint alleges Defendant violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., the Electronic Fund Transfer Act, 15 U.S.C. § 1693 et seq., and Nevada's Deceptive Trade Practices Act, NRS 598 et seq., in attempting to collect debt from Plaintiff Brandi Gaines and others similarly situated.
Plaintiff asserts that although PDL conducts its debt collection business in Nevada, it does not have a legal Nevada presence. Specifically, PDL does not have a registered agent in Nevada to accept service of process and is not registered with the Nevada Department of Business and Industry, Division of Financial Institutions to collect debt in Nevada,  PDL is also not registered with the Nevada Secretary of State as a foreign limited liability company. Affidavit of Keren Gesund, attached to Motion to Deem Served, at ¶ 1 and Exhibit A to Affidavit. Additionally, according to the New York State Department of State, PDL's physical address is a P.O. Box in Amherst, New York. Affidavit at ¶ 2; see also Search Results, attached as Exhibit B to Affidavit. PDL does not have a registered agent to accept service of process in New York. Id. Plaintiff's process server attempted to serve the New York State Department of State, but it refused to accept service because the lawsuit was filed outside of New York. Affidavit at ¶ 3; see also Unexecuted Returned Proof of Service, attached as Exhibit C to Affidavit.
On February 3, 2014, Plaintiff asked PDL to waive service of process pursuant to § 312-a of New York's Civil Practice Law and Rules by mailing a statement of service by mail and acknowledgement of receipt by mail of summons and complaint, with certified mail return receipt requested. Affidavit at ¶ 5. On February 28, 2014, the statement was returned as unclaimed. Id .; see also Return of Service, attached as Exhibit D to Affidavit.
On February 5, 2014, Plaintiff's attorney emailed a courtesy copy of the civil cover sheet, complaint, and summons to PDL's New York counsel, Mr. Michael A. Benson, who refused to accept service on behalf of his client. Affidavit at ¶ 6; see also Email from Keren Gesund to Michael Benson, attached as Exhibit E to Affidavit.
On February 10, 2014, Plaintiff's counsel requested a copy of PDL's Articles of Incorporation from the New York Department of State in order to locate an individual member of PDL to serve. Affidavit at ¶ 8. PDL's corporate documents do not identify any members of the LLC to serve. Id .; see also Articles of Organization, attached to Affidavit as Exhibit G.
On February 13, 2014, PDL's New York counsel called Plaintiff's attorney to discuss the Complaint and potential settlement. Affidavit at ¶ 9. PDL's counsel told Plaintiff's counsel that PDL might be going out of business, could not afford the cost of litigation, and would not waive service of or answer the Complaint. Id .; see also Emails between Keren Gesund and Michael Benson, attached to Affidavit as Exhibit H. PDL's counsel would not tell Plaintiff's counsel where a member of PDL could be located to serve. Id.
On March 4, 2014, Plaintiff's counsel requested boxholder information for PDL's P.O. Box from the Postmaster of Amherst, New York. Affidavit at ¶ 10. The Postmaster responded and identified V. Cobb Associates LLC as the boxholder located at 4244 Ridge Lea Road, Amherst, New York, 14226. Id .; see also Returned Request for Boxholder Information, attached to Affidavit as Exhibit I The Ridge Lea Road address is also a paid-for mail drop location. Affidavit at ¶ 11. A search revealed that the owner of V. Cobb Associates LLC is Ronald Cobb, and he is not located in Western New York. Affidavit at ¶ 12; see also Email from Premier Process Service of WNY, attached to Affidavit as Exhibits K and C.
On March 18, 2014, Plaintiff mailed a copy of the civil cover sheet, Complaint, and summons to PDL's Amherst P.O. Box by first class mail. Affidavit at ¶ 13. Plaintiff's counsel did not receive a response, and the mailing was not returned as undeliverable. Id. On March 28, 2014, Plaintiff's counsel again attempted to serve the New York Department of State, but service was denied again because this lawsuit was filed outside of New York. Affidavit at ¶¶ 14, 15; see also Email from Premier Process Server and Affidavit of Non-Service, attached to Affidavit as Exhibits L and M, respectively.
Plaintiff requests the court deem service has been completed on PDL. As support, Plaintiff cites a New York state case for the proposition that service can be proper when process is mailed to a private P.O. Box where a party seeks to evade service by hiding behind a private mailbox. Plaintiff asserts that PDL has effectively insulated itself from service of process, and service should be deemed completed. Plaintiff contends PDL will not be prejudiced because PDL's counsel has received and reviewed a copy of the summons and complaint, and an additional copy was mailed to PDL's P.O. Box and was not returned. Alternatively, Plaintiff requests permission to serve PDL by publication in New York. Additionally, Plaintiff requests an additional 120 days in which to serve the Complaint. Plaintiff represents that good ...