United States District Court, D. Nevada
NICK FISHER, individually and on behalf of all others similarly situated, Plaintiff,
THEVEGASPACKAGE.COM, INC., a Nevada corporation, and DOUGLAS DOUGLAS, an individual, Defendants.
FERENBACH UNITED STATES MAGISTRATE JUDGE.
the court is Plaintiff's Motion and Memorandum of Points
and Authorities in Support of Motion for Alternative Service
Upon TheVegasPackage.com, Inc. (ECF No. 10).
motion raises two issues: (1) whether he may have additional
time to serve TheVegasPackage.Com, Inc. and (2) whether he
may effectuate service upon Defendant THEVEGASPACKAGE.COM,
INC. by service upon Nevada's Secretary of State. The
last day to effectuate service is December 12, 2019.
have broad discretion to extend time for service under Rule
4(m). Efaw v. Williams, 473 F.3d 1038, 1041 (9th
Cir. 2003). The Supreme Court has stated that the 90-day time
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 90-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 90-day period.” Mann v. American
Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). 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
90 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.
“good cause” is equated with diligence.
See Wright & Miller, Federal Practice and
Procedure: Civil 3d § 1337. In the Ninth Circuit, a
showing of good cause requires more than simple inadvertence,
mistake of counsel, or ignorance of the rules. See
National Union Fire Ins. Co. v. Monroe, No. 10-cv-0385,
2011 WL 383807, at *1 (D. Nev. Feb. 2, 2011). “At a
minimum, good cause means excusable neglect. A plaintiff may
also be required to show the following: (a) the party to be
served personally received actual notice of the lawsuit; (b)
the defendant would suffer no prejudice; and (c) the
plaintiff would be severely prejudiced if his complaint were
dismissed.” Boudette v. Barnette, 923 F.2d
754, 756 (9th Cir.1991)
has satisfied this standard. Since September, Plaintiff has
been diligent in trying to serve Defendant
THEVEGASPACKAGE.COM, INC. with the Summons and Complaint.
Defendants would not be prejudice since they have not
appeared in this matter and Plaintiff would be prejudiced if
his complaint was dismissed.
the court grants Plaintiff an additional sixty days to
personally serve Defendant THEVEGASPACKAGE.COM, INC.
motion to serve Defendant THEVEGASPACKAGE.COM, INC. by mean
of service upon Nevada's Secretary of State is granted.
The Federal Rules of Civil Procedure do not expressly permit
alternative service upon Nevada's Secretary of State.
Rule 4(e)(1), however, permits a plaintiff to serve a
defendant “following state law for serving a summons in
an action brought in courts of general jurisdiction in the
state where the district court is located or where service is
made.” Fed.R.Civ.P. 4(e)(1).
Nevada, Rule 4 of the Nevada Rules of Civil Procedure governs
service of parties under state law. Parties are required to
personally serve summons and the complaint upon defendants;
however, when personal service proves impossible, the Nevada
Rules of Civil Procedure provide that, if service on a
business entity cannot be made to its registered agent or
other officers, “the plaintiff may seek leave of court
to serve the Nevada Secretary of State in the entity's or
association's stead.” Nev. R. Civ. P. 4.2(c)(3)(A).
In support of such alternative service, the rule requires
filing of a supporting affidavit that (1) sets forth facts
demonstrating Plaintiff's good faith attempts to locate
and serve the entity; (2) explains the reasons why service
could not be made; and (3) states the last-known address of
the entity or its agents. Id. 4.2(c)(3)(A)(i)-(iii).
Plaintiff has satisfied these requirements. Plaintiff has
provided an affidavit that the process server attempted 14
times to serve Defendant THEVEGASPACKAGE.COM, INC.'s
registered agent. (ECF NO. 10-2 at 2). The process server
states that the registered agent's office was not staffed
during normal business hours. The process server was able to
get Douglas Douglas on the phone at registered agent's
office but Douglas kept denying any connection to
THEVEGASPACKAGE.COM, INC., despite being listed as its
registered agent. (ECF NO. 10 at 3). Plaintiff has provided a
last known address of Defendant THEVEGASPACKAGE.COM, INC.
and for good cause shown, IT IS ORDERED that Plaintiff's
Motion and Memorandum of Points and Authorities in Support of
Motion for Alternative Service Upon TheVegasPackage.com, Inc.
(ECF No. 10) is GRANTED.
FURTHER ORDERED that Plaintiff GRANTED an additional sixty
days from the date of this order to serve ...