United States District Court, D. Nevada
ORDER [DOCKET NO. 52]
J. Koppe, United States Magistrate Judge.
before the Court is Plaintiff's motion for an extension
of time to serve Defendant Isiah Jacobs and for leave to
serve Mr. Jacobs by publication. Docket No. 52. Defendants
filed a response in opposition and Plaintiff filed a reply.
Docket Nos. 53, 54. The motion is properly resolved without a
hearing. See Local Rule 78-1. For the reasons
discussed below, the motion to extend the time to serve Mr.
Jacobs is GRANTED, and the request to serve
Mr. Jacobs by publication is DENIED WITHOUT
Motion to Extend Time for Service
good cause is shown, the time for serving the complaint is
extended for an appropriate period. See Fed. R. Civ.
P. 4(m). The motion establishes sufficient cause to extend
the time for effectuating service on Mr. Jacobs to July 22,
Motion to Leave to Serve by Publication
also seeks leave to serve Mr. Jacobs by publication. Service
by publication is generally disfavored because substituted
service implicates a defendant's constitutional right to
due process. See, e.g., Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314-15;
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).
is to be provided pursuant to the law of the forum state, or
in which service is made. See Fed. R. Civ. P.
4(e)(1). Nevada law permits service by publication if the
plaintiff cannot, after due diligence, locate the defendant.
See Nev. R. Civ. P. 4.4(c)(1)(a). Due diligence is
that which is appropriate to accomplish actual notice and is
reasonably calculated to do so. See Abreu v. Gilmer,
115 Nev. 308, 313 (1999) (citing Parker v. Ross, 117
Utah 417, 217 P.2d 373, 379 (Utah 1950)). Courts may consider
the number of attempts made to serve the defendant at his
residence and other methods of locating the defendant, such
as consulting public directories and family members. See,
e.g., Price v. Dunn, 787 P.2d 786, 786-87;
Abreu 115 Nev. at 313; McNair v. Rivera,
110 Nev. 463, 874 P.2d 1240, 1241 (Nev. 1994).
Plaintiff made a single attempt to serve Mr. Jacobs at his
last known address; left messages after calling an
unconfirmed telephone number; searched social media; looked
for records at the assessor's office and the Department
of Motor Vehicles; and reviewed criminal records. Docket No.
52-1. Plaintiff was informed by a third-party that in August
2018, Mr. Jacobs moved to “the Salt Lake area.”
Id. Nonetheless, Plaintiff has not documented
efforts to locate Mr. Jacobs in Utah, which is fatal to her
request to serve by publication. Cf. Bank of N.Y. Mellon
v. Seven Hills Master Cmty. Ass'n, 2016 U.S. Dist.
Lexis 144077, at *3 (D. Nev. Oct. 18, 2016) (denying motion
for service by publication because, given information that
the unserved defendant resides in Lebanon, attempts to locate
and serve him there were required to establish
diligence). It is also not entirely clear from the
record whether Plaintiff has been searching for Mr. Jacobs
using the correct spelling of his first name.
Compare Docket No. 33 with Docket No.
circumstances do not justify allowing service by publication.
the Court GRANTS the motion to extend the
deadline to effectuate service on Mr. Jacobs, and
DENIES WITHOUT PREJUDICE the request for
leave to serve Mr. Jacobs by publication. The deadline to
serve Mr. Jacobs is extended to July 22, 2019.