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Chase v. Merson

United States District Court, D. Maine

August 24, 2018

JOHN F. CHASE, Plaintiff
ARTHUR MERSON, et al., Defendants



         The plaintiff, John F. Chase, moves for authorization to serve by publication five of the 10 defendants herein and for an additional 90 days to complete service. See Motion To Extend Time for Service of Process and To Authorize Service by Publication (“Motion”) (ECF No. 37) at 1. Chase proposes to serve defendants Arthur Merson and Endeavor Project Consultants, LLC in The Arizona Republic; Don Patch in the Portland Press Herald and The Arizona Republic; and Russell Hearld and Stellar Enterprises, Inc. in the Houston Chronicle. See id. at 5. For the reasons that follow, I grant the Motion insofar as the plaintiff requests a deadline extension, enlarging his deadline to serve process by 90 days to October 16, 2018, but, deny the Motion without prejudice on the showing made, insofar as he requests service by publication.

         I. Request To Extend Time

         Pursuant to Federal Rule of Civil Procedure 4(m), “[i]f 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.” Fed.R.Civ.P. 4(m). However, “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id.

         The plaintiff filed his complaint on April 19, 2018, see Complaint (ECF No. 1), and filed the instant motion on July 13, 2018, see ECF No. 37, five days prior to the expiration of his deadline to serve process on July 18, 2018. While, for the reasons discussed below, I conclude that he falls short of making the showing necessary to warrant service by publication, I find good cause for the requested 90-day extension based on his efforts thus far to serve the remaining defendants, his timely filing of the instant request for an extension of time, and the possibility that, with further effort, he may yet be able to locate one or more of the five defendants or make the required showing for service by publication. Hence, I grant the motion insofar as it requests a 90-day extension of time to serve process, extending that deadline to October 16, 2018.

         II. Request for Service by Publication

         A. Applicable Legal Standard

         “Under Federal Rule of Civil Procedure 4(e), service may be accomplished by delivering a copy of the summons and the complaint to the individual personally, leaving a copy at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there, [or] delivering a copy to an agent authorized by appointment or by law to receive service of process[.]” Edson v. Riverside Psychiatric Ctr., No. 1:16-cv-00079-JAW, 2016 WL 3257003, at *2 (D. Me. June 13, 2016); Fed.R.Civ.P. 4(e)(2). Service may also be accomplished “by 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.” Edson, 2016 WL 3257003, at *2; Fed.R.Civ.P. 4(e)(1).

         Maine law allows service by publication “on motion upon a showing that service cannot with due diligence be made by another prescribed method[.]” Me. R. Civ. P. 4(g). To meet that standard, the movant must provide an affidavit showing that (i) the movant “has demonstrated due diligence in attempting to obtain personal service of process in a manner otherwise prescribed by Rule 4 or by applicable statute[, ]” (ii) “[t]he identity and/or physical location of the person to be served cannot reasonably be ascertained, or is ascertainable but it appears the person is evading process[, ]” and (iii) “[t]he requested method and manner of service is reasonably calculated to provide actual notice of the pendency of the action to the party to be served and is the most practical manner of effecting notice of the suit.” Me. R. Civ. P. 4(g)(1).

         The plaintiff provides an affidavit of his attorney, Benjamin S. Piper, Esq., in support of his argument that, despite duly diligent efforts, he could not reasonably ascertain the location of any of the five defendants, warranting the grant of his request for service by publication. See Motion at 5-6; Declaration of Benjamin S. Piper (“Piper Decl.”) (ECF No. 37-1), attached thereto.[1]He contends that, in Gaeth v. Deacon, 2009 ME 9, 964 A.2d 621, the Law Court made clear that due diligence “is to be measured by a reasonableness or practicality standard.” Motion at 4. He notes that the Law Court observed, “[N]otice by publication is adequate . . . where it is not reasonably possible or practicable to give more adequate warning.” Id. (quoting Gaeth, 2009 ME 9, ¶ 24, 964 A.2d at 627) (citation and internal quotation marks omitted).

         However, this downplays the extent of the concern expressed by the Law Court in Gaeth regarding notice by publication. As the Law Court noted, “The purpose of the rule regarding service is to achieve due process by giving sufficient notice of civil actions.” Gaeth, 2009 ME 9, ¶ 27, 964 A.2d at 628. In the passage quoted by the plaintiff, it stated:

The Supreme Court has stated that “[c]hance alone brings a person's attention to an advertisement in small type inserted in the back pages of a newspaper and that notice by publication is adequate only where it is not reasonably possible or practicable to give more adequate warning.”

Id., 2009 ME 9, ¶ 24, 964 A.2d at 627 (citation and internal quotation marks omitted) (emphasis added).

         The Law Court observed that, as a result of societal and technological changes, “service by publication has become less likely to achieve actual notice of a lawsuit” and, therefore, “also less likely to meet the requirements of due process.” Id., 2009 ME 9, ¶ 26, 964 A.2d at 628. As such, it stated, “service by publication in a newspaper is now a last resort that a party should attempt only when it has exhausted other means more likely to achieve notice.” Id.

         The plaintiff notes that, in Edson, this court made clear that, “in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all the situation permits and creates no constitutional bar to a final decree foreclosing their rights.” Motion at 5 (quoting Edson, 2016 WL 3257003, at *3) (citation and internal quotation marks omitted).

         However, in Edson, this court was persuaded that the defendant's “physical location [could not] reasonably be ascertained” in circumstances in which the plaintiff's “extensive efforts” included (i) “search[ing] various social media websites; public records databases; and Maine government websites” and attempting to make telephone contact with the defendant, (ii) retaining two sheriff's offices to locate and serve the defendant, and (iii) hiring a private investigator “to conduct a public records search, obtain potential addresses for [the defendant] and travel to those [seven] addresses in an effort to serve [her][.]” Edson, 2016 WL 3257003, at *1, 3.

         By contrast, this court has denied motions for service by publication on the basis of an insufficient showing of due diligence when a moving party failed to show that it had taken “even simple steps . . . such as contacting the defendant's former landlord, the defendant's brother or his brother's guardian, or engaging a private investigator” and had failed to specify “what ‘internet searches' it undertook or what ‘acquaintances' it contacted and when[, ]” Camden Nat'l Bank v. Reid, No. 2:13-cv-376-DBH, 2014 WL 1320944, at *2 (D. Me. March 28, 2014), and when “[a] number of avenues [did] not appear to have been exhausted[, ]” such as contacting utility companies and querying whether any forwarding address had been left with the Postal Service, MATSCO v. Brighton Family Dental, P.C., 597 F.Supp.2d 158, 162 (D. Me. 2009).

         For the reasons that follow, I conclude that the plaintiff, as well, has left avenues unexhausted, falling short of making a sufficient showing of due diligence in attempting to locate each of the five defendants. As in MATSCO, I do not mean to suggest that specific actions are “ironclad prerequisites in an immutable list of steps to be undertaken” but, rather, that “something more than has been shown ...

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