United States District Court, D. Maine
MEMORANDUM DECISION AND ORDER ON MOTION TO SERVE
DEFENDANT LINDA A. BALL BY ALTERNATIVE METHOD
H. Rich III United States Magistrate Judge
plaintiff in this mortgage foreclosure action, Federal
National Mortgage Association (“FNMA”), seeks to
serve defendant Linda A. Ball by leaving a copy of the
summons and complaint at the subject property and/or by
publication. See Motion to Serve Defendant, Linda A.
Ball, by Alternative Method (“Motion”) (ECF No.
22). Because I conclude that FNMA has left avenues
unexhausted and has failed to supply the requisite proposed
order, I deny the Motion.
Applicable Legal Standard
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 “a
draft, proposed order to provide the requested service by
alternative means, ” containing the content specified
in Rule (4)(g)(2), as well as 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.
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 8, 2019, FNMA filed a complaint seeking to foreclose
on a property located at 67 Bradstreet Lane in Eliot, Maine
(the “Property”) for alleged breach of a mortgage
and note owned by FNMA. Complaint (ECF No. 1) ¶¶
27-36. FNMA requested that the York County Sheriff's
Office serve Ms. Ball at the Property; however, on February
22, 2019, FNMA received a Diligent Search Invoice from Deputy
Titcomb of the York County Sheriff's Office reporting
that he had not made contact with Ms. Ball and that she had
not returned any of his phone calls. Affidavit in Support of
Motion to Serve Defendant, Linda A. Ball, by Alternative
Method (“Affidavit”) (ECF No. 22-1), attached to
Motion, ¶¶ 3-4. Deputy Titcomb added that he had
spoken to Ms. Ball's neighbor, who reported that Ms. Ball
was staying with a friend “‘due to
surgery.'” Id. ¶ 5. That day, FNMA
attempted to reach Ms. Ball and her co-defendant, Richard P.
Andry, by telephone, but discovered that “all phone
numbers provided on their Risk reports were
disconnected.” Id. ¶ 6.
March 5, 2019, FNMA again requested that the York County
Sheriff's Office serve Ms. Ball at the Property.
Id. ¶ 7. On March 18, 2019, FNMA received an
Affidavit of Non-Service from Deputy Titcomb reporting that
he had attempted service on March 7, 8, and 11, 2019, but was
unsuccessful because “the Property is currently
vacant.” Id. ¶¶ 8-9. That day, FNMA
sent a letter to Ms. Ball at the Property's address
providing its counsel's contact information and
requesting a date and time convenient for Ms. Ball to accept
service. Id. ¶ 10.
April 10, 2019, Ms. Ball and Mr. Andry entered into a Loan
Modification Trial Plan, and foreclosure proceedings were
halted. Id. ¶ 11. However, on June 19, 2019,
FNMA instructed its counsel to move forward with the
foreclosure process. Id. ¶ 12. A “new
Risk search was completed” that did not reveal any new
addresses for Ms. Ball. Id. On June 20, 2019, FNMA
again requested that the York County Sheriff's Office
serve Ms. Ball at the Property address. Id. ¶
13. On July 3, 2019, FNMA received a phone call from the York
County Sheriff's Office reporting that neighbors had
confirmed that Ms. Ball no longer lived at the Property
address. Id. ¶ 14.
5, 2019, FNMA retained a private investigator to attempt to
locate Ms. Ball. Id. ¶ 15. On September 20,
2019, the private investigator reported that he or she had
been unable to locate a new address for Ms. Ball but had been
able to trace her to a possible family home in Portsmouth,
New Hampshire. Id. ¶¶ 16-17. On October 1,
2019, FNMA dispatched Nationwide Court Services to attempt to
serve Ms. Ball at the family home in New Hampshire.
Id. ¶ 17. However, on October 16, 2019,
Nationwide Court Services reported that the New Hampshire
home belonged to an individual who did not know Ms. Ball.
Id. ¶ 18.
showing made, I conclude that FNMA has not demonstrated that
“service cannot with due diligence be made by another
prescribed method[, ]” Me. R. Civ. P. 4(g)(1), and,
accordingly, deny its request to serve Ms. Ball by leaving
copies of the summons and complaint at the Property or by
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); see also MATSCO v. Brighton Family Dental,
P.C., 597 F.Supp.2d 158, 162 (D. Me. 2009) (motion
denied 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); Chase v. Merson,
No. 2:18- cv-00165-NT, 2018 U.S. Dist. LEXIS 144109, at
*12-14 (D. Me. Aug. 24, 2018) (motion denied when
“leads were left ...