United States District Court, D. Maine
U.S. BANK TRUST, N.A., as TRUSTEE FOR LSF10 MASTER PARTICIPATION TRUST, Plaintiff
GLENN FARRAR a/k/a GLENN E. FARRAR, JR., Defendant
MEMORANDUM DECISION AND ORDER ON MOTION TO SERVE
DEFENDANT GLENN FARRAR, A/K/A/ GLENN E. FARRAR, JR., BY
H. Rich III United States Magistrate Judge
plaintiff in this mortgage foreclosure action, U.S. Bank
Trust, N.A., as Trustee for LSF10 Master Participation Trust
(“U.S. Bank Trust”), seeks to serve defendant
Glenn Farrar a/k/a/ Glenn E. Farrar, Jr., by publication.
See Motion to Serve Defendant, Glenn Farrar a/k/a
Glenn E. Farrar, Jr., by Publication (“Motion”)
(ECF No. 14). Because I conclude that U.S. Bank Trust 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
March 27, 2019, U.S. Bank Trust filed a complaint seeking to
foreclose on a property located at 100 Gary Street in South
Paris, Maine (the “Property”) for alleged breach
of a mortgage and note owned by U.S. Bank Trust. Complaint
(ECF No. 1) ¶¶ 19-28. That day, U.S. Bank Trust
arranged for the Oxford County Sheriff's Office to
attempt service of the summons and the complaint on Mr.
Farrar at the Property. Affidavit in Support of Motion  to
Serve Defendant, Glenn Farrar a/k/a Glenn E. Farrar, Jr., by
Publication (“Affidavit”) (ECF No. 14-1),
attached to Motion, ¶ 3. On May 24, 2019, U.S. Bank
Trust received an Affidavit in Support of Non-Service from
Deputy Sheriff William Nelson stating that service had been
attempted on April 9 and 12 and May 2, 2019, and that, as of
the last attempt, “the house was empty with building
permits on it.” Id. ¶ 4.
4, 2019, U.S. Bank Trust sent a letter to the South Paris,
Maine, Post Office seeking an alternate address for Mr.
Farrar. Id. ¶ 5. On June 18, 2019, it received
a letter from the South Paris Postmaster stating that Mr.
Farrar had moved and left no forwarding address. Id.
Bank Trust then conducted a series of online searches for Mr.
Farrar's address. Id. ¶¶ 7-12. On June
19, 2019, it performed a search using the program LexisNexis
Accurint that listed the Property as Mr. Farrar's current
address. Id. ¶ 7. On August 20, 2019, it
performed an internet search seeking an obituary or
bankruptcy filing in Mr. Farrar's name that yielded no
results. Id. ¶ 8. On September 25, 2019, and
October 2, 2019, it performed additional LexisNexis Accurint
searches that again listed the Property as Mr. Farrar's
current address. Id. ¶ 9.
Bank Trust conducted several other online searches on October
2, 2019. Id. ¶¶ 10-12. It performed a
social media search for Mr. Farrar and discovered a Facebook
page listing South Paris, Maine, as his current city;
however, there were “no recent posts by [Mr. Farrar] to
support that he [wa]s living at that location.”
Id. ¶ 10. It searched probate proceedings for
all of Maine's 16 counties on MaineProbate.net, finding
no results for Mr. Farrar. Id. ¶ 11. Finally,
it searched the Property's address on Google Maps and
found a photo of the Property dated October 2016 showing
“multiple unregistered vehicles and articles of trash
on the property.” Id. ¶ 12.
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 unexplored” in movant's attempts to serve
defendant at property; for example, movant made only three
visits to a property over a span of six days, made “no
additional attempts . . . to confirm” that the property
was the defendant's residence and serve process upon him,
and did not hire a private investigator).
contrast, this court has granted motions for service by
publication when, for example, a movant made contact with a
neighbor who stated that he had not seen the defendant at the
property for four or five years, searched databases operated
by the State of Maine Police and the Bureau of Motor Vehicles
without success, and retained the services of a private
investigator who eventually “concluded that she had
exhausted all means of locating” the defendant.
U.S. Bank ...