Davis v. Automatic Food Service, Inc. et al
Filing
50
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,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
AUTOMATIC FOOD SERVICE,
INC., et al.,
Defendants.
CIVIL ACTION NO.
2:14cv308-MHT
(WO)
OPINION AND ORDER
Plaintiff
against
Sundee
several
Ann
Davis
defendants,
brings
including
this
lawsuit
James
Leon
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
McGaughy.
The motion will be denied.
I. FACTUAL BACKGROUND
This case arises out of a collision on an Alabama
road.
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
of
occasions.
She
attempted
to
serve
the
original
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
undeliverable.
As a final step, Davis tasked an investigator with
finding McGaughy.
The investigator first used past phone
and power bills to confirm McGaughy’s last-known address,
but he found that address vacant.
2
He also tried, but
failed, to locate McGaughy at all prior addresses and
places
of
McGaughy
employment.
was
not
Last,
receiving
he
checked
mail
to
because
see
he
if
was
incarcerated, but McGaughy had not been incarcerated.
II. DISCUSSION
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 [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
3
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)).
The
party
or
party’s
counsel
must
also
submit
an
affidavit averring these facts. Ala. R. Civ. P. 4.3(d).
Davis satisfies the second and third factors.
She
attempted and failed several times at locating McGaughy’s
present
location,
and
the
investigator
issued
an
affidavit to that effect.
Davis fails, however, to show the first factor of
avoidance.
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
service
other
than
by
publication,
substantial
constitutional questions may be posed by the obtaining of
an
in
personam
judgment
by
publication.”
Comments to Ala. R. Civ. P. 4.3(c).
diligent
search
and
hiring
a
Committee
Merely conducting a
process
server
is
not
enough. Beasley v. United States, 162 F.R.D. 700, 701
4
(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
plaintiff
must
defendant
point
knows
about
to
specific
the
evidence
potential
that
service
the
and
is
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
avoiding contact.
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
enough
for
service
by
publication.
Indeed,
the
only
discussion of avoidance in Davis’s motion is a conclusory
allegation that “McGaughy has avoided service,” Motion to
5
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.
***
For
the
foregoing
reasons,
it
is
ORDERED
that
plaintiff Sundee Ann Davis’s motion to serve defendant
James Leon McGaughy by publication (doc. no. 47) is
denied.
DONE, this the 21st day of August, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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