United States District Court, D. Nevada
Order re: Service on Jesse Nickles [Doc. 66]
JENNIFER A. DORSEY, District Judge.
Plaintiff Neumont University sued Jesse Nickles and his company Little Bizzy for a series of allegedly defamatory statements. Doc. 1. After determining that Nickles was never properly served, I set aside the clerk's default previously entered against him and ordered Neumont to properly serve Nickles within 60 days or show good cause why service could not be made. Doc. 62. Still unable to serve Nickles by traditional means, Neumont requests that I deem its email service sufficient or, in the alternative, permit them to serve Nickles by publication. Doc. 66. I find that Neumont has made a good-faith effort to serve Nickles and that Nickles's continued averments that he is located in a foreign country have confounded the orderly prosecution of this lawsuit. Accordingly, I grant Neumont's motion in part: Neumont has 10 days to serve Nickles via email with a copy of the summons and complaint.
Before this case was assigned to me, a clerk's default was entered against Nickles. Doc. 44. After reviewing Neumont's service attempts in connection with its motion for a default judgment against Nickles and Little Bizzy, Doc. 45, I determined that service had not been properly effectuated upon Nickles personally, and I set the default aside. Doc. 62. I then gave Neumont 60 days to serve Nickles or show good cause why service upon him could not be made. Id. at 19.
Neumont timely brought this motion within the 60-day service-or-good-cause period and requests that I: (1) find Nickles has already appeared in the case, (2) deem prior email service appropriate and retroactive, or (3) permit Neumont leave to serve Nickles by publication. Doc. 66. Nickels opposed the motion in a pro se capacity, and he explains that he lives outside the country in a location he does not disclose. Doc. 68. Neumont offers no reply.
A. Neumont has shown good cause why it has failed to serve Nickles.
Neumont argues that, throughout the course of this litigation, Nickles has played "fast and loose with this Court and the justice system" by, inter alia, refusing to communicate with counsel by any means other than email. Doc. 66 at 2, 8-9. Neumont argues that Nickles cannot be found in the State of Nevada, efforts to ascertain his whereabouts through his family members have been unsuccessful, and Nickles has admitted that he lives in an undisclosed foreign location. See id. at 12. Neumont also contends that the delay in this case has resulted in irreparable harm to it, as during the pendency of this case Nickles has "continue[d] unabated in his cowardly and spurious activities from the anonymous world of the internet." Doc. 66 at 2. In response, Nickles argues that he is "neither obligated nor inclined" to provide information regarding his whereabouts, re-affirms that he lives outside the United States and this has always been the case, and contends that he has not appeared in his individual capacity. Doc. 68 at 2.
Given the protracted nature of this litigation, Neumont's repeated attempts to serve Nickles prior to my setting aside the default, and Nickles's absence from the country, I conclude that Neumont has shown good cause why it has not yet served Nickles.
B. Nickles did not consent to personal jurisdiction by "appearing" in the case.
Neumont argues that Nickles is already properly before the court because he was provided with a copy of the summons and complaint on August 16, 2012, and then made a series of "voluntary" appearances in his individual capacity at, inter alia, "discovery conferences, motion practice, and even settlement discussions." Doc. 66 at 8. In response, Nickles contends that, while he did "appear" previously as Little Bizzy's representative, he was doing so as his company's representative and "removed [himself] from the case as soon as this court ordered... Little Bizzy LLC to retain corporate counsel." Doc. 68 at 2.
Due process requires that a defendant be given notice reasonably calculated under the totality of the circumstances to apprise him of the pendency of an action and afford the defendant an opportunity to respond and present objections. "Service of process is the means by which a court asserts jurisdiction over the person, " and where personal service is required, failure to perfect it is fatal to a lawsuit. However, a defendant may waive his objection to jurisdiction by appearing and not asserting insufficient service of process as an affirmative defense in a responsive pleading or dispositive motion. Such defenses may also be waived when a defendant "engage[s] in... deliberate, strategic behavior" in defending against the lawsuit.
To date, Nickles has not answered or filed a motion to dismiss, and his company Little Bizzy has had a default judgment entered against it. Doc. 62. Neumont points to Nickles's activity in the case as evidence he has effectively appeared and deliberately waived his objections to service of process. Doc. 66 at 8 (citing Docs. 27, 30, 35, 36, and 40, as well as Nickles's other conduct in the litigation). But Neumont's chosen record citations do not demonstrate that Nickles was acting on his own behalf such that his behavior was "deliberate" or "strategic."
For example, Doc. 27, a motion Nickles filed to stay discovery pending resolution of a dispositive motion, refers to "Defendant" and "Little Bizzy" as the subjects of the motion; there is no indication that Nickles intended to file this document on his own behalf. See Doc. 27. Although Doc. 30 is brought by "Defendants Little Bizzy LLC and Jesse Nickles, " the response pertains to Little Bizzy's motion to dismiss, as well as Magistrate Judge Leen's order that Little Bizzy retain counsel by a date certain. See id. Nickles, as sole managing member of Little Bizzy, would obviously be obliged to file any response to Judge Leen's show-cause order prior to retaining counsel, and thus Doc. 30 cannot reasonably reflect an appearance by Nickles individually. Similarly, Doc. 35, a de facto motion for reconsideration of Judge Leen's denial of a motion to stay and an order to show case, is brought by "Defendants Little Bizzy LLC and Jesse Nickles, " defines the two defendants as a singular "defendant" and then refers almost exclusively to "defendant" throughout the remainder of the filing. Doc. 35. Document 36, a "letter" to the court regarding the steps Little Bizzy took to retain corporate counsel, also begins with the opaque joint definition of "defendant, " yet concludes by stating that "to avoid the appearance of alter ego' actions in this complaint, managing member ...