Davis v. Summler et al

Filing 14

OPINION AND ORDER directing that plaintiff Samuel Davis's motion to serve defendant U Got Mail Transporter, LLC by publication (Doc. No. 10 ) is granted, as further set out. Signed by Honorable Judge Myron H. Thompson on 4/16/14. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

SAMUEL DAVIS,

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)
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)
)
)
)
)
)
)
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)

Plaintiff,
v.
WILLIAM MARTIN SUMMLER,
an individual, and U GOT
MAIL TRANSPORTER, LLC.,
a corporation,
Defendants.

CIVIL ACTION NO.
2:13cv840-MHT
(WO)

OPINION AND ORDER
This case is before the court on plaintiff Samuel
Davis’s motion for service by publication on defendant U
Got

Mail

Transporter,

LLC.

Rule

4(h)(1)(A)

of

the

Federal Rules of Civil Procedure, through reference to
Fed. R. Civ. P. 4(e)(1), allows service to be completed
by “following state law for serving a summons in an
action brought in courts of general jurisdiction in the
state

where

the

service is made.”

district

court

is

located

Fed. R. Civ. P. 4(e)(1).

or

where

In this

case,

the

district

court

is

located

in

Alabama

but

service will be made in Georgia.
Both Alabama and Georgia law allow for service by
publication.

See

§ 9-11-4(f)(1).

Ala.

R.

Civ.

P.

4.3;

Ga.

Code

Based on the representations in Davis’s

motion, the court finds that he is entitled to serve
U Got Mail by publication under both States’ laws.

I. FACTUAL BACKGROUND
This case, in which Davis has named not only U Got
Mail

but

also

William

Martin

Summler

as

defendants,

arises out of a traffic collision in which Davis was
allegedly struck by a tractor-trailer driven by Summler
while Summler was acting in the employment of U Got Mail.
Before

filing

this

lawsuit,

Davis

mailed

a

‘preservation letter,’ via certified mail, to U Got Mail.
The letter was accepted.

Furthermore, someone at U Got

Mail seems to have read to that letter because Davis was
subsequently contacted by an insurer for the company.

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However, when the court attempted to serve Davis’s
complaint by certified mail at the same address, the mail
See Docket Text December 19, 2013)

was not accepted.

(“Mail Returned as Undeliverable ... etc.”).

Davis then

hired a process server to effect service on U Got Mail,
and the server tried on three occasions, all without
success.

Finally,

the

server

provided

affidavit

testimony that he “[s]poke to [the] leasing office” and
that “they stated that they had just moved so[me]one new
into that apartment and they didn’t have the last name of
Perez,” the last name of the registered agent for U Got
Mail. Process Server Aff. (Doc. No. 10-6).

II. ALABAMA LAW
Alabama law allows service by publication “[w]hen [1]
a

defendant

avoids

service

and

[2]

that

defendant's

present location or residence is unknown and [3] the
process

server

service

and

the

has

endorsed

reason

the

therefor

fact
on

of

the

failure
process

of
and

returned it to the clerk or where the return receipt

shows a failure of service.”

Ala. R. Civ. P. 4.3(c)

(numbering and emphasis added); see Am. Indoor Football
Ass’n, Inc. v. Lockwood, 267 F.R.D. 663, 666 (M.D. Ala.
2010) (Thompson, J.) (restating the three requirements).
Davis satisfies the first and third requirements:
that he has been unable to serve U Got Mail and that the
company has avoided service.

As described above, U Got

Mail had notice of this lawsuit but nonetheless refused
to accept service by either certified mail or by process
server.
Davis also satisfies the second requirement: that U
Got Mail and its agent’s location are unknown.

He

provides affidavit testimony from the process server that
the leasing office at the address to which U Got Mail was
registered said “that they had just moved someone new
into that apartment and they didn’t have the last name
of” U Got Mail’s agent.
10-6).

Process Server Aff. (Doc. No.

Admittedly, this statement is hearsay within

hearsay, see Fed. R. Evid. 805, and thus may not be

4

admissible for the truth of the matter asserted: that
someone

new

did,

in

fact,

registered to U Got Mail.

move

into

the

apartment

However, the evidence is

admissible, and in fact sufficient, to show Davis’s lack
of knowledge as to where U Got Mail and its agent are
currently located.
Having satisfied the three requirements, the court
finds that Davis is authorized to serve U Got Mail by
publication

under

Alabama

law.

The

procedures

for

service by publication under Alabama law are described at
Ala. R. Civ. P. 4.3(d).

III. GEORGIA LAW
Georgia

law

allows

service

by

publication

in

a

greater number of circumstances than Alabama law does.
The

relevant

Georgia

statute

allows

service

by

publication “[w]hen the person on whom service is to be
made ... cannot, after due diligence, be found within the
state, or conceals himself or herself to avoid service of

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the

summons.”

added).

Ga.

Since

Code

the

§

9-11-4(f)(1)(A)

requirements

are

(emphasis

listed

in

the

disjunctive (“or”), a plaintiff needs to satisfy only one
of these requirements.

He therefore may be entitled to

service by publication because the defendant has been
avoiding service, even if he cannot show that he does not
know where the recipient of service is located.

See

Melton v. Johnson, 249 S.E.2d 82, 85 (Ga. 1978)(allowing
service by publication where location of recipient was
known

but

recipient

was

avoiding

service);

Ragan

v.

Mallow, 744 S.E.2d 337, 340 (Ga. Ct. App. 2012) (same);
Hutcheson v. Elizabeth Brennan Antiques & Interiors,
Inc., 730 S.E.2d 514, 516 (Ga. Ct. App. 2012) (same).
For

the

same

reasons

that

Davis

is

entitled

to

service by publication under Alabama law, he is therefore
also

entitled

under

Georgia

law.

The

procedures

for

service by publication under Georgia law are described at
Ga. Code. § 9-11-4(f)(1)(C).

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***
For

the

foregoing

reasons,

it

is

ORDERED

that

plaintiff Samuel Davis’s motion to serve defendant U Got
Mail Transporter, LLC by publication (Doc. No. 10) is
granted.
DONE, this the 16th day of April, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE