Davis v. Automatic Food Service, Inc. et al
OPINION AND ORDER directing that plaintiff Sundee Ann Davis's motion to serve defendant James Leon McGaughy by publication (doc. no. 47 ) is denied. Signed by Honorable Judge Myron H. Thompson on 8/21/14. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
SUNDEE ANN DAVIS,
AUTOMATIC FOOD SERVICE,
INC., et al.,
CIVIL ACTION NO.
OPINION AND ORDER
McGaughy, seeking to recover for injuries she suffered in
a car accident. Diversity-of-citizenship jurisdiction is
proper under 28 U.S.C. § 1332.
This case is before the
court on Davis’s motion for service by publication on
The motion will be denied.
I. FACTUAL BACKGROUND
This case arises out of a collision on an Alabama
Reading the facts as garnered from the complaint,
Davis was traveling northbound on the road while another
driver and McGaughy were traveling southbound on the same
road. McGaughy hit the other driver from behind, sending
the other driver into the oncoming lane of traffic, where
he collided with Davis.
Davis filed suit against McGaughy among others and
has since tried and failed to serve McGaughy on a number
complaint on him at his last known address by certified
mail, but the mail was undeliverable.
She then tried to
send an amended complaint to the same address, and it was
As a final step, Davis tasked an investigator with
The investigator first used past phone
and power bills to confirm McGaughy’s last-known address,
but he found that address vacant.
He also tried, but
failed, to locate McGaughy at all prior addresses and
incarcerated, but McGaughy had not been incarcerated.
Rule 4(e)(1) of the Federal Rules of Civil Procedure
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 district
court is located or where service is made.” Fed. R. Civ.
P. 4(e)(1). In this case, the district court is located
in and service is sought to be made in Alabama.
Alabama law permits service by publication “when 
present location or residence is unknown and  the
returned it to the clerk or where the return receipt
shows a failure of service.” Davis v. Summler, 2014 WL
1492876, at *1 (M.D. Ala. Apr. 16, 2014) (Thompson, J.)
(emphasis in original)(citing Ala. R. Civ. P. 4.3(c)).
affidavit averring these facts. Ala. R. Civ. P. 4.3(d).
Davis satisfies the second and third factors.
attempted and failed several times at locating McGaughy’s
affidavit to that effect.
Davis fails, however, to show the first factor of
Avoidance plays a central role in the inquiry
because, “[w]ithout this element of culpability on the
part of the defendant when plaintiff has failed to obtain
constitutional questions may be posed by the obtaining of
Comments to Ala. R. Civ. P. 4.3(c).
Merely conducting a
enough. Beasley v. United States, 162 F.R.D. 700, 701
(M.D. Ala. 1995) (Albritton, J.) (rejecting implication
that defendant must be avoiding service because defendant
cannot be located after a diligent search). Instead, the
avoiding it. See Summler, 2014 WL 1492876, at *1-*2
(holding that defendant had notice and avoided it when
defendant accepted an earlier preservation letter, and an
insurer for the defendant contacted the plaintiff).
None of Davis’s evidence proves that McGaughy is
For example, he has not previously
accepted or responded to letters from Davis, nor did
friends or former employers suggest that he had recently
moved to avoid the lawsuit.
As in Beasley, an exhaustive
search in this case without evidence of avoidance is not
discussion of avoidance in Davis’s motion is a conclusory
allegation that “McGaughy has avoided service,” Motion to
Serve by Publication (doc. no. 47) at 3, and that bare
allegation does not meet the requirement.
Because Davis failed to satisfy all the requirements
under Alabama law, the court finds that she is not
authorized to serve McGaughy by publication.
plaintiff Sundee Ann Davis’s motion to serve defendant
James Leon McGaughy by publication (doc. no. 47) is
DONE, this the 21st day of August, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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