United States District Court, D. Nevada
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Ex
Parte Motion to Enlarge Time to Effectuate Service of
Process and for Service by Publication (ECF No. 35), filed on
November 22, 2017.
to Fed.R.Civ.P. 4(e), the state statutes in which the
District Court is held are followed in matters pertaining to
service of summons by publication. Nev. R. Civ. P. 4(e)(1)(i)
states that the court may permit service by publication if,
after due diligence shown, the plaintiff is unable to find
the defendant(s) within the state, or they are avoiding the
service of summons. The plaintiff must prove this to the
satisfaction of the court either by affidavit or by a
verified complaint. The Nevada Supreme Court has held that
there is no objective, formulaic standard for determining
what is, or is not, due diligence. Abreu v. Gilmer,
985 P.2d 746, 749 (1999).
Civ. P. 4(d)(1), which governs service on Nevada
corporations, states as follows:
[W]hen for any reason service cannot be had in the manner
hereinabove provided, then service may be made upon such
entity by delivering to the secretary of state, or the deputy
secretary of state, a copy of said summons attached to a copy
of the complaint, and by posting a copy of said process in
the office of the clerk of the court in which such action is
brought or pending; defendant shall have 20 days after such
service and posting in which to appear and answer;
addition, once the twenty days have elapsed, the plaintiff
shall send a copy of the summons and complaint by certified
mail to the corporation at its officer's last known
address. Nev. R. Civ. P. 4(d)(1).
argues that it has shown due diligence. First, with respect
to Defendants Rosenblatt and Klingler, Plaintiff has attempted
personal service on multiple occasions. Plaintiff attempted
to serve Defendants during the G2E trade show, at
Defendants' last known address in Davisburg, Michigan, at
Defendants' last known address in Las Vegas, Nevada and
through Defendants' last known counsel. Motion (ECF No.
35), pgs 3-5; See also Notices of Due Diligence (ECF
Nos. 19-22). In addition, Plaintiff represents that its
counsel has communicated with Defendant Rosenblatt (via
telephone and email) on several occasions and during such
time, Defendant Rosenblatt represented that Defendants would
waive service. Id. However, after sending Defendants
a copy of the summons and complaint as well as a request to
waive service form, Defendants Rosenblatt and Klingler have
yet to return an executed waiver.
Scrappy Elegant Gaming, LLC (“Scrappy”) is a
revoked Nevada corporation. Id. at pg. 5; see
also Appendix to Plaintiff's Emergency Motion for
Temporary Restraining Order (ECF No. 11), Exhibit G.
Scrappy's sole member was Defendant Klingler. Plaintiff
represents that it has attempted to serve Scrappy through
Defendants Klinger and Rosenblatt (during each attempt at
personal service) and through Scrappy's last known
counsel. In addition, Plaintiff represents that it has mailed
a copy of the summons and complaint to Scrappy's last
known address along with a waiver of service request. None of
Plaintiff's service attempts were successful and Scrappy
has not executed a service waiver.
on the foregoing, the Court finds that Plaintiff has
demonstrated due diligence that warrants an order allowing
Defendants Rosenblatt and Klingler to be served by
publication and allowing Defendant Scrappy to be served
through the Nevada Secretary of State. Accordingly,
IT IS HEREBY ORDERED that Plaintiff's
Ex Parte Motion to Enlarge Time to Effectuate
Service of Process and for Service by Publication (ECF No.
35) is granted. Defendants Darryl Rosenblatt
and Jamie Leigh Klingler may be served by Plaintiff through
publication of the summons and complaint in this case at
least once a week for four (4) consecutive weeks in the
Nevada Legal News, which is a newspaper of general
circulation published in Las Vegas, Nevada.
IS FURTHER ORDERED that Plaintiff is authorized to
serve process upon Defendant Scrappy Elegant Gaming, LLC as
provided by Nevada Rule of Civil Procedure 4(d)(1) through
service on the Nevada Secretary of State.
IS FURTHER ORDERED that Plaintiff shall deposit a
copy of the summons and complaint in the post office via
first class certified mail, directed to Defendants'
Darryl Rosenblatt, Jamie Leigh Klingler and Scrappy Elegant
Gaming, LLC at their last known physical addresses: 8665
Tindall Road, Davisburg, MI 48350.
IS FURTHER ORDERED that Plaintiff shall have until
February 18, 2018, to complete service upon