United States District Court, D. Nevada
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
before the court is plaintiff's motion to enlarge time to
serve summons and complaint and for service via publication
on defendant Eva Arriba (ECF Nos. 8, 9), filed on May 29,
case arises from a dispute over real property located at 3381
Milenko Drive, Las Vegas, NV 89121. (Compl. (ECF No. 1).)
Non-party Emily Gold obtained title to the disputed property
subject to the covenants and restrictions of defendant Pecos
Estates Homeowners Association (“Pecos HOA”).
(Id.) Following the acquisition, Gold obtained a
loan from IFG Mortgage Services, Inc. in the amount of $97,
600. (Id.) Gold executed a promissory note in favor
of IFG, and a deed of trust to secure repayment of the loan.
(Id.) The recorded deed of trust listed Franke as
the borrower, IFG as the lender, and Mortgage Electronic
Registration Systems, Inc. (“MERS”) as the as
beneficiary solely as nominee for the lender and its
successors and assigns. (Id.)
Federal National Mortgage Association (“Fannie
Mae”) acquired ownership of the loan and deed of trust.
(Id.) FHFA exercised its authority and placed Fannie
Mae into conservatorship, succeeding Fannie Mae to its
rights, titles and privileges. (Id.) In June of
2013, MERS assigned the deed of trust to Fannie Mae, placing
Fannie Mae as the loan servicer and record beneficiary.
(Id.) Thereafter, Pecos HOA, through its trustee
Alessi & Koeing, sold the disputed property to defendant
Eva Arriba in a foreclosure sale for $8, 000. (Id.)
Mae commenced this case complaint on March 5, 2018 by
bringing a complaint for declaratory judgment and to quiet
title. (Id.) Fannie Mae has not served Arriba with
process, and Fannie Mae now moves the court to enlarge the
time to serve Arriba and for service via publication. (ECF
Nos. 8, 9.)
MOTION TO EXTEND TIME TO SERVE
4(m) of the Federal Rule of Civil Procedure provides the time
for service on domestic defendants:
If a defendant is not served within 90 days after the
complaint is filed, the court - on motion or on its own after
notice to the plaintiff - must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
court “must extend time for service upon a showing of
good cause.” Crowley v. Bannister, 734 F.3d
967, 976 (9th Cir. 2013) (citing Lemoge v. United
States, 587 F.3d 1188, 1198 (9th Cir. 2009)). Absent a
showing of good cause, the court may exercise its discretion
to extend service upon a showing of excusable neglect or
dismiss the complaint. See Id. The court has
“broad discretion to extend time for service under Rule
4(m).” Efaw v. Williams, 473 F.3d 1038, 1041
(9th Cir. 2007).
cause is determined on a case-by-case basis. Laski v. Am.
Bd. of Internal Med., 92 F.Supp.3d 1013, 1016 (D. Nev.
2015). The standard for good cause is the diligence of the
party effectuating service. See Townsel v. Contra Costa
Cnty., Cal., 820 F.2d 319, 320 (9th Cir. 1987). A
showing of good cause requires more than inadvertence or
mistake of counsel. Id. “[A]t a minimum, good
cause means excusable neglect.” In re Sheehan,
253 F.3d 507, 512 (9th Cir. 2001) (internal quotations
support of its request, plaintiff references the process
server's affidavit detailing her efforts to personally
serve Arriba at both suspected residential addresses. (Mot.
to Extend Time (ECF No. 8), Ex. 2.) The process server states
that she attempted to personally serve Arriba on four
separate occasions. (Id.) The first attempt occurred
on May 5, 2018 at Arriba's last known address.
(Id.) The residents at that property provided the
process server with Arriba's current address.
(Id.) The remaining three attempts took place at the
newly-obtained address on the following dates: May 9, 2018,
May 10, 2018, and May 14, 2018. (Id.) The court
finds that the plaintiff's repeated attempts to serve
defendant Arriba constitute a showing of good under Rule
4(m). Thus, the court will grant plaintiff's request to
extend service by an additional 60 days.
MOTION TO SERVE BY PUBLICATION
plaintiff moves to serve defendant Arriba by publication.
Pursuant to Rule 4(e)(1) of the Federal Rules of Civil
Procedure, an individual may be served according to the state
law for serving a summons where the district court is located
or where service is made. The state of Nevada permits service
by publication when the “person on whom service is made
. . . cannot, after due diligence, be found within the
state.” Nev. R. Civ. P. 4(e)(1)(i). The party seeking
service must provide an affidavit to the court demonstrating
due diligence to effect service and that “a cause of
action exists against the defendant in respect to whom
service is to be made, and that the defendant is a necessary
or proper party to the action . . .” Id. Upon
approval of the court, the publication shall appear in a
newspaper in Nevada at least ...