United States District Court, D. Nevada
J. ALBREGTS UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiffs' Motion for Extension of
Time for Service of Summons and Complaint on Defendant Dean
Eakins and for Service by Publication (ECF No. 26), filed on
October 24, 2019. The Motion requests that Plaintiffs be
allowed to serve Defendant Dean Eakins by publication. In
doing so, Plaintiffs argue that such service is needed
because (1) they have identified four possible addresses, (2)
attempted service on two of the addresses including the best
possible match 12 times, and (3) have no other way to
determine the whereabouts of Eakins. (ECF No. 26, 3-4).
request a ninety (90) day extension of time to serve under
Fed.R.Civ.P. 4(m), which expired on October 28, 2019. Rule 4m
If a defendant is not served within 120 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.
have broad discretion to extend time for service under Rule
4(m). Efaw v. Williams, 473 F.3d 1038, 1041(9th
Cir.2003). The 120-day period for service contained in Rule
4(m) “operates not as an outer limit subject to
reduction, but as an irreducible allowance.”
Henderson v. United States, 517 U.S. 654, 661
(1996). “On its face, Rule 4(m) does not tie the hands
of the district court after the 120-day period has expired.
Rather, Rule 4(m) explicitly permits a district court to
grant an extension of time to serve the complaint after that
120-day period.” Mann v. American Airlines,
324 F.3d 1088, 1090 (9th Cir.2003). Moreover, the Advisory
Committee Notes to Rule 4(m) state that the rule
“explicitly provides that the court shall allow
additional time if there is good cause for the
plaintiff's failure to effect service in the prescribed
120 days, and authorizes the court to relieve a plaintiff of
the consequences of an application of [Rule 4(m)] even if
there is no good cause shown.” See
Fed.R.Civ.P. 4(m), Advisory Committee Notes, 1993 Amendments.
Generally, “good cause” is equated with
diligence. See Wright & Miller, Federal Practice
and Procedure: Civil 3d § 1337.
Court has little difficulty finding good cause for the
requested extension. The exhibits attached from
Plaintiffs' process server (ECF No. 26, 10-15) provide a
detailed breakdown of the many efforts that have been made to
effectuate service in this matter. Thus, the request for
ninety (90) additional days to complete service is granted.
also request service by publication. Fed.R.Civ.P. 4(e)(1)
addresses service by publication in federal actions. Rule
4(e)(1) states that an individual may be served by following
state law for serving summons in an action brought in courts
of general jurisdictions in the state where the district
court is located, or where service is made. Nevada Rules of
Civil Procedure 4.4(c) and 4.4(c) subsections (1), (2), (3),
and (4) govern service by publication as an alternative
method of service. The current version of Nevada Rule reads
in pertinent part as follows:
4.4(c) Service by Publication. If a party demonstrates that
the service methods provided in Rules 4.2, 4.3, and 4.4(a)
and (b) are impracticable, the court may, upon motion and
without notice to the person being served, direct that
service to be made by publication.
4.4(c)(1) Conditions . Service by publication may only be
ordered when the defendant (A) cannot, after due diligence,
(B) by concealment seeks to avoid service of the summons and
(C) is an absent or unknown person in an action involving
real or person property under Rule 4.4(c)(3).
4.4(c)(2) Motion Seeking Publication. A motion seeking an
order for service by publication must:
(A) through pleadings or other evidence establish that:
(i) a cause of action exists against the defendant who is to