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Chase v. Merson

United States District Court, D. Maine

November 18, 2018

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



         On August 24, 2018, I granted the plaintiff's request to enlarge his deadline to serve process by 90 days to October 16, 2018, but denied without prejudice, on the showing made, his motion to serve five of 10 defendants by publication. See Memorandum Decision and Order on Motion To Extend Time for Service of Process and To Authorize Service by Publication (“Prior Decision”) (ECF No. 40) at 1. The plaintiff, who has since served two of those defendants, moves for an additional 90-day extension of his deadline to serve process and for authorization to serve process by alternate means on the remaining three, Don Patch, Russell Hearld, and Stellar Enterprises, Inc. (“Stellar”). See Second Motion To Extend Time for Service of Process and To Authorize Service by Alternate Means (“Second Motion”) (ECF No. 43) at 1.[1] For the reasons that follow, I grant the Second Motion, extend the plaintiff's deadline to serve process by an additional 90 days to January 14, 2019, and direct that the plaintiff serve Patch, Hearld, and Stellar by the alternate means of publication, first-class mail, and email as detailed below.

         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 has shown good cause for the requested additional 90-day extension in that, despite diligent efforts to locate and serve the five defendants who were the subject of his initial motion, he was able to serve only two. Accordingly, I extend his deadline to serve process by 90 days, from October 16, 2018, to January 14, 2019.

         II. Request for Service by Alternate Means

         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 alternate means “on motion upon a showing that service cannot with due diligence be made by another prescribed method[.]” Me. R. Civ. P. 4(g)(1). 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.” Id.

         The Law Court has observed that, because 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.” Gaeth v. Deacon, 2009 ME 9, ¶ 26, 964 A.2d 621, 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.

         B. Discussion

         I denied the plaintiff's prior motion for service by publication without prejudice on the showing made, concluding that, as in MATSCO v. Brighton Family Dental, P.C., 597 F.Supp.2d 158, 162 (D. Me. 2009), the plaintiff had “left avenues unexhausted, falling short of making a sufficient showing of due diligence in attempting to locate each of the five defendants.” Prior Decision at 5. I described, as to each defendant, examples of avenues that appeared to have been left unexhausted, see id. at 6-11, cautioning that I did “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 must be shown in order to comply with the Law Court's explication of due process in this context[, ]” id. at 5 (citation and internal punctuation omitted). The plaintiff now offers evidence, in the form of the declaration of one of his attorneys, Benjamin S. Piper, with attachments, that he undertook the steps cited as examples in the Prior Decision.

         1. Don Patch

         In my prior decision I noted that, although the plaintiff had attempted to serve process on Patch at his last known addresses in both Arizona and Maine, he had not pursued avenues such as (i) making additional attempts to confirm that a house in Tucson, Arizona, bearing the name “Patch” on the mailbox was that of Patch and to serve him there, (ii) contacting the water company or other utilities to obtain a billing address, (iii) searching for Patch at the property referenced in the complaint that Patch had offered as security for the plaintiff's investment, (iv) attempting to contact Patch through a telephone number and email address listed in a contract appended to the complaint, the so-called “Success Fee Agreement, ” or (v) hiring a private investigator. See Prior Decision at 8-9. The plaintiff offers evidence that he has since pursued all of those avenues, as follows.

         On September 6, 2018, Attorney Piper's assistant engaged private investigators in both Maine and Arizona to attempt to serve Patch. See Declaration of Benjamin S. Piper (“Piper Decl.”) (ECF No. 43-1), attached to Second Motion, ¶¶ 21-22. Service was attempted on Patch at 30 Burnham Woods, Scarborough, Maine, on three occasions on September 11 and 12, 2018. Id. ¶ 21 & Exh. L (ECF No. 43-13) thereto. On the first two occasions, the private investigator observed no activity at the house, but on the third occasion, he spoke with Deb and Steve Malia, Patch's daughter and son-in-law, who informed him that Patch was in Tucson, Arizona, and “RV-ing” throughout the area. Id.

         The Arizona private investigator searched two private investigator databases and conducted a motor vehicle search, a utilities search, and an employment search. Piper Decl. ¶ 22 & Exh. M (ECF No. 43-14) thereto. Those searches confirmed that Patch resided and had utilities at 1510 W. Beech Way, Tucson, Arizona. Id. The investigator also reached Patch's son by telephone, and he confirmed his father's residence at that address. Id. A private service processor attempted service at that address on September 14, 16, 18, 22, and 23 and October 2 ...

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