Davis v. Summler et al
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
WILLIAM MARTIN SUMMLER,
an individual, and U GOT
MAIL TRANSPORTER, LLC.,
CIVIL ACTION NO.
OPINION AND ORDER
This case is before the court on plaintiff Samuel
Davis’s motion for service by publication on defendant U
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
service is made.”
Fed. R. Civ. P. 4(e)(1).
service will be made in Georgia.
Both Alabama and Georgia law allow for service by
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
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.
‘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.
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.”).
hired a process server to effect service on U Got Mail,
and the server tried on three occasions, all without
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 
present location or residence is unknown and  the
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
Davis also satisfies the second requirement: that U
Got Mail and its agent’s location are unknown.
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.
Process Server Aff. (Doc. No.
Admittedly, this statement is hearsay within
hearsay, see Fed. R. Evid. 805, and thus may not be
admissible for the truth of the matter asserted: that
registered to U Got Mail.
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
Having satisfied the three requirements, the court
finds that Davis is authorized to serve U Got Mail by
service by publication under Alabama law are described at
Ala. R. Civ. P. 4.3(d).
III. GEORGIA LAW
greater number of circumstances than Alabama law does.
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
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.
Melton v. Johnson, 249 S.E.2d 82, 85 (Ga. 1978)(allowing
service by publication where location of recipient was
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).
service by publication under Alabama law, he is therefore
service by publication under Georgia law are described at
Ga. Code. § 9-11-4(f)(1)(C).
plaintiff Samuel Davis’s motion to serve defendant U Got
Mail Transporter, LLC by publication (Doc. No. 10) is
DONE, this the 16th day of April, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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