Cordero v. Countertop Creations Incorporated et al

Filing 7

ORDER granting 6 Motion for alternative service. Signed by Judge David G Campbell on 7/9/2014.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Victor Cordero,

No. CV-14-00993-PHX-DGC
Plaintiff,

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v.

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ORDER

Countertop Creations Incorporated, et al.,

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Defendants.

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Plaintiff asks the Court to permit alternate service on Defendants Countertop

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Creations, Inc., Jeffrey Smith, and the spouse of Jeffrey Smith pursuant to Federal Rules

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of Civil Procedure 4(e)(1) and 4(h)(1)(A). The Court will grant the motion.

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Plaintiff asserts that its attempts to serve Defendant Countertop Creations at its

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business address have been unsuccessful. Doc. 6 at 2. Process servers have been turned

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away by receptionists at the business complex where Countertop Creations was

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previously located. Id. The receptionists have stated that Countertop Creations “went

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out of business a couple months ago.” Id. Because Defendant Countertop Creations’

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website and voicemail service are still operational, Plaintiff believes that the company

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can be contacted at the company’s email address, which is published on its website. Id.

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Process servers have also advised Plaintiff that Defendant Jeffrey Smith appears to be

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avoiding service, which poses a significant problem because Mr. Smith is the statutory

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agent and the only listed officer and director of Defendant Countertop Creations. Id.

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After Plaintiff was unable to serve process on Defendants at Countertop Creations’

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business address, Plaintiff performed a “skip trace” to locate Defendant Jeffrey Smith’s

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home address. Id. at 3. The “skip trace” revealed a residential address for Mr. Smith

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with a corresponding address for Defendant Countertop Creations. Id. Attempts to serve

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Defendants at the residential address have been unsuccessful. Id. Process servers noted,

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however, that a pickup truck parked in the driveway at the residential address had

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“Countertop Creations, Inc.” on its side. Id. Plaintiff believes that all Defendants could

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be served at the residential address. Id.

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In lieu of personal service on Defendants through traditional methods, Plaintiff

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requests permission to serve the Summons and Complaint by the following methods:

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(1) email copies of each Summons and Complaint to the email address published on

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Defendant Countertop Creations’ website; (2) mail a copy of each Summons and

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Complaint to Defendant Countertop Creations’ business address, which is also the listed

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address for Defendant Jeffrey Smith in his capacity as the statutory agent; (3) mail a copy

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of each Summons and Complaint to the residential address identified by the “skip trace”

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where the pickup truck was parked.

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Rule 4(h)(1)(A) authorizes service of process on a corporation in the manner

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prescribed by Rule 4(e)(1) for serving an individual. Rule 4(e)(1) authorizes service of

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process consistent with state law for serving a summons. When traditional methods of

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serving process are ineffective, Arizona Rule of Civil Procedure 4.1(k) authorizes

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alternative or substitute forms of service so long as reasonable efforts are taken to assure

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that actual notice of the commencement of the action is provided.

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To pass constitutional muster, a method of service approved by a district court

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must be “reasonably calculated, under all the circumstances, to apprise interested parties

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to the pendency of the action and afford them an opportunity to present their objections.”

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Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). The Court

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concludes that Plaintiff’s three-pronged method of serving process on Defendants

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satisfies Mullane and is authorized under federal and Arizona rules of civil procedure.

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IT IS ORDERED that Plaintiff’s motion for alternate service (Doc. 6) is granted.

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Service by the methods proposed in the motion shall be completed within 30 days of this

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order. When providing the summons and complaint by these methods, Plaintiff shall

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include a copy of this order.

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Dated this 9th day of July, 2014.

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