United States District Court, D. Nevada
ORDER (MOT. FOR SUBSTITUTE SERVICE - ECF NO.
A. LEEN UNITED STATES MAGISTRATE JUDGE
matter is before the court on the Emergency Motion for
Substitute Service (ECF No. 19) filed by Plaintiff Apogee
Technology Consultants, LLC (“Apogee”) on June
30, 2017. This Motion is referred to the undersigned pursuant
to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local
Rules of Practice. The court has considered the Motion.
initiated this lawsuit by filing its Complaint (ECF No. 1)
and associated Exhibits (ECF Nos. 6-8) on May 12, 2017. The
complaint alleges causes of action against Defendant Rebecca
Buffum for: (1) slander of title, (2) intentional
interference with prospective economic advantage, (3)
business disparagement, and (4) declaratory judgment on
complaint alleges subject matter jurisdiction pursuant to 28
U.S.C. § 1332 based upon diversity. Compl. at 2, ¶
1. Apogee is a Florida limited liability company with its
principal place of business in Nevada, and its members are
Michael J. Coker and John J. Madsen, who are Nevada
residents. Id. at 2-3, ¶¶ 1, 6. Ms. Buffum
is alleged to be a Texas resident “who on information
and belief, is presently domiciled in Leander, Travis County,
Texas.” Id. ¶¶ 2, 7. The amount in
controversy purportedly exceeds $75, 000. Id. ¶
3. With regard to personal jurisdiction, the complaint
alleges that Ms. Buffum “has sufficient minimum
contacts” with Nevada such that the exercise of
jurisdiction “would not offend traditional notions of
fair play and substantial justice.” Id. ¶
4. Buffum allegedly published a knowingly false story on her
website disparaging Apogee's intellectual property.
Id. She did so “with the specific intent
to disparage the true owner of such intellectual property and
interfere with Apogee's prospective business.”
Id. The website is currently active and it is the
only known place where the story is published. Id.
Apogee alleges that the website is directed at causing it
harm in Nevada, and has, “in fact, caused and is
continuing to cause substantial harm” to Apogee in
alleges that venue is proper in the District of Nevada
because its causes of action arise out of Buffum's
unlawful conduct that has been and continues to be directed
to this judicial district. Id. at 2-3, ¶ 5.
Additionally, Buffum's unlawful conduct has caused, and
is continuing to cause, Apogee harm in Nevada. Id.
complaint and its exhibits acknowledge previous litigation
between Ms. Buffum and Apogee's members, Messrs. Coker
and Madsen. Id. at 10-11, ¶ 41 (citing
Madsen, et al. v. Buffum, et al., Case No.
5:12-cv-01605-MWF-SP (C.D. Cal.) (“California
Case”), filed Aug. 8, 2012); Compl. Ex. 6 (ECF No. 6-6)
(attaching final judgment entered Dec. 14, 2010, in
Madsen, et al. v. Buffum, et al., Case No.
C-1-CV-10-002345 (Tex. Travis County Ct.) (“Texas
Case”)).Notably, in the California Case, Coker and
Madsen alleged that Buffum and other defendants owned and
operated the website www.stopmadsencoker.com. See
California Case, Second Am. Compl. (ECF No. 72). This is the
same website at issue in this current action. Defendants
purportedly used the website to harass Coker and Madsen and
interfere with their business relationships with respect to
their California-based company, New-Visions Geo, Inc.
Id. Mr. Coker further represented that he purchased
a houseboat from Chris and Rebecca Buffum in August 2009.
Id., Decl. of Michael Coker (ECF No. 23-2). Buffum
is the only defendant from the California and Texas Cases to
be named in this current action.
Apogee's Motion for Substitute Service (ECF No.
motion, Apogee asserts it has engaged in numerous efforts in
an attempt to effectuate personal service on Buffum,
including three attempts at her last-known home address in
Texas and two attempts at the nearby Sandy Creek Yacht Club
and Marina. See Mot. Ex. (ECF No. 19-3), Decl. of
George L. Castillo. The process server's attempts to
serve Buffum were not successful. Id. However,
Apogee claims that substitute service has been properly been
effectuated on Buffum and, therefore, asks the court to find
that substitute service was proper.
of the Federal Rule of Civil Procedure provides that service
may be effectuated on an individual by: (i) following the
laws governing service of process in the state where the
district court is located or where service is made; (ii)
delivering a copy of the summons and complaint to the
individual personally; (iii) leaving the copies with a person
of suitable age and discretion residing at the
individual's dwelling or usual place of abode; or (iv)
delivering the copies to an agent authorized by appointment
or by law to receive service of process. Fed.R.Civ.P. 4(e).
Nevada law permits service on an individual by any of the
three latter methods authorized by the federal rules.
See Nev. R. Civ. P. 4(d)(6).
must obtain prior court approval for any alternative method
of serving process. Brockmeyer v. May, 383 F.3d 798,
806 (9th Cir. 2004). If alternative service of process is
appropriate, any alternative method of service must
“comport with constitutional notions of due
process.” Rio Properties, Inc. v. Rio
Int'l Interlink, 284 F.3d 1007, 1016-17 (9th Cir.
2002) (citing Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 314 (1950)). Due process is satisfied
when service is “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their
personal service proves impossible, Rule 4 of the Nevada
Rules of Civil Procedure provides that the court may allow a
party to perform service by publication:
In addition to methods of personal service, when the person
on whom service is to be made 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 … [the] court or judge may grant an order
that the service be made by the publication of summons.
Nev. R. Civ. P. 4(e)(1)(i) (emphasis added). Nevada law
provides additional methods of substitute service in specific
situations. See NRS 14.070 (service on driver of
vehicle involved in crash); NRS 14.080 (service on foreign
manufacturers, producers, and suppliers of ...