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Board of Trustees of Construction Industry v. Panacea Services LLC

United States District Court, District of Nevada

April 29, 2015

BOARD OF TRUSTEES OF THE CONSTRUCTION INDUSTRY & LABORERS HEALTH & WELFARE TRUST, et al., Plaintiffs,
v.
PANACEA SERVICES LLC, et al., Defendants.

ORDER DENYING MOTION FOR SERVICE BY PUBLICATION AND GRANTING MOTION FOR EXTENSION OF TIME (Docket Nos. 6, 8)

NANCY J. KOPPE United States Magistrate Judge

Pending before the Court is Plaintiffs' motion for an extension to serve Defendant Evon Kanagin ("Defendant") and for leave to serve Defendant by publication. Docket Nos. 6, 8.[1] The Court finds the motion properly resolved without oral argument. See Local Rule 78-2. For the reasons discussed below, the motion is hereby GRANTED in part and DENIED in part.

A Service by Publication

The pending motion seeks an order allowing Plaintiffs to complete service by publication on Defendant. Service by publication implicates a defendant's fundamental due process rights. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950); Price v. Dunn, 787 P.2d 785, 787 (Nev. 1990). As a result, service by publication is disfavored. See, e.g., Trustees of the Nev. Resort Assoc.-Int'l Alliance of Theatrical Stage Employees & Moving Picture Machine Operators v. Alumifax, Inc., 2013 U.S. Dist. Lexis. 106456, *2 (D. Nev. July 29, 2013).

Federal Rule of Civil Procedure 4(e)(1) provides for service "pursuant to the law of the state in which the district court is located, or in which service is effected." Under Nevada Rule of Civil Procedure ("NRCP") 4, parties are required to personally serve summons and the complaint upon defendants. When personal service proves impossible, however, NRCP 4(e)(1)(i) provides that a party may file a motion for service by publication when the opposing party "resides out of the state, or has departed from the state, or cannot, after due diligence be found within the state, or by concealment seeks to avoid the service of summons." When service of the summons is made by publication, the summons shall, in addition to any special statutory requirements, also contain a brief statement of the object of the action. NRCP 4(b).

A party moving for service by publication must seek leave of court by filing an affidavit demonstrating she diligently attempted to personally serve the defendant. There are several factors courts consider to evaluate a party's due diligence, including the number of attempts made to serve the defendants at their residence and other methods of locating defendants, such as consulting public directories and family members. See Price, 787 P.2d at 786-87; Abreu v. Gilmer, 985 P.2d 746, 747 (Nev. 1999); McNair v. Rivera, 874 P.2d 1240, 1241 (Nev. 1994).

The Court finds the present record insufficient to order service by publication. Plaintiffs assert that they attempted to serve Defendant at her last known business address without success. See Ring Aff at ¶¶ 4-5. Plaintiffs assert that they then identified a residential address and attempted to serve Defendant at that alternative address without success. See Id. at ¶¶ 6-7.[2] Plaintiffs also imply that their counsel had planned to seek acceptance of service for Defendant through an attorney, but could not do so because that attorney is not representing Defendant. See Id. at ¶9. In essence, Plaintiffs assert that they have twice attempted personal service on Defendant and reached out to her former attorney regarding possible acceptance of service. Especially given the disfavored nature of service by publication and the due process rights involved, the Court finds such efforts insufficient to show that service by publication should be allowed.

B. Extension

Where good cause is shown, the time for serving the complaint is extended for an appropriate period. See F.R.C.P. 4(m). The Court finds good cause exists for a an extension to June 29, 2015 to conduct further due diligence in attempting to serve Defendant.

C. Conclusion

For the reasons discussed more fully above, the pending motion is GRANTED in part and DENIED in part. Plaintiffs' motion for an order allowing service by publication is DENIED without prejudice. Nonetheless, Plaintiffs' motion for an extension is GRANTED and the deadline to serve Defendant is hereby EXTENDED to June 29, 2015. If Plaintiffs are unable to serve Defendant by that date, they may file a renewed motion for service by publication explaining in detail the steps that have been taken to locate and serve Defendant.

IT IS SO ORDERED.


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