United States District Court, D. Maine
MEMORANDUM DECISION AND ORDER ON RENEWED MOTION FOR
SERVICE BY PUBLICATION
H. RICH III UNITED STATES MAGISTRATE JUDGE.
mortgage foreclosure action, plaintiff Federal National
Mortgage Association (“FNMA”) renews its motion
for service by publication of defendant David J. Colizzi,
see Renewed Motion for Alternate Service
(“Second Motion”) (ECF No. 12), after its
original motion was mooted by its filing of an amended
complaint, see Motion for Alternate Service
(“First Motion”) (ECF No. 7); Amended Complaint
for Foreclosure (ECF No. 10); Order (ECF No. 11). Because I
conclude that FNMA has left avenues unexhausted, I deny the
Second Motion, without prejudice, and extend FNMA's
deadline to serve process to August 30, 2019.
Applicable Legal Standards
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).
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.
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
February 2019, the Kennebec County Sheriff's Office
attempted on behalf of FNMA to serve Mr. Colizzi at the
property that is the subject of this foreclosure action.
Second Motion at 1 & Exh. A (ECF No. 12-1) thereto. The
Sheriff's Office reported that the house was empty and
that, per the United States Postal Service, Mr. Colizzi had
moved and left no forwarding address. Id.
conducted online searches, social media searches, and
people-find software searches, locating a Post Office Box
that several websites listed as belonging to Mr. Colizzi.
Second Motion at 1. However, when FNMA attempted service by
mail to that address, the United Parcel Service returned the
package as undeliverable. Id. at 1-2 & Exh. B
(ECF No. 12-2) thereto.
March 2019, the Essex County Sheriff's Department of
Salem, Massachusetts, attempted service on Mr. Colizzi at an
address in Methuen, Massachusetts. Second Motion at 2 &
Exh. C (ECF No. 12-3) thereto. The Sheriff's Department
reported that Mr. Colizzi's father, who lived at that
address, informed the Deputy Sheriff that Mr. Colizzi lived
in Tennessee. Second Motion at 2. FNMA has searched
unsuccessfully for an address for Mr. Colizzi in Tennessee.
that service by publication is a last resort, to be deployed
when “it is not reasonably possible or practicable to
give more adequate warning[, ]” Gaeth, 2009 ME
9, ¶ 24, 964 A.2d at 628, 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.
as well, I conclude that FNMA has left avenues unexhausted,
falling short of making a sufficient showing of due diligence
in attempting to locate Mr. Colizzi.
begin, FNMA neglected to attach an affidavit, as required by
Maine Rule of Civil Procedure 4(g)(1), to its Second
Motion. Beyond that, FNMA has not specified what
online searches it undertook and when, instead characterizing
its “online searches, social media searches, and
people-find software searches” as
“thorough” and its search ...