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Apogee Technology Consultants, LLC v. Buffum

United States District Court, D. Nevada

July 21, 2017




         This 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.

         I. The Complaint

         Apogee 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 ownership.

         The 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.[1] 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 Nevada. Id.

         Apogee 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.

         The 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”)).[2]Notably, in the California Case, Coker and Madsen alleged that Buffum and other defendants owned and operated the website 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.

         II. Apogee's Motion for Substitute Service (ECF No. 19)

         In the 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.

         Rule 4 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).

         Plaintiffs 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 objections.” Id.

         When 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 ...

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