Charles v. Burnett

Filing 24

ORDER granting in part and denying in part 23 Motion for Order Authorizing Constructive Service (See Order for Specifics). Signed by Honorable Timothy L. Brooks on May 27, 2021. (lgd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
LORENE CHARLES, as Personal Representative
of the Estate of Nancy Lorene Geary, Deceased
V.

PLAINTIFF

CASE NO. 5:10-CV-5235

JOHN M. BURNETT

DEFENDANT
ORDER

Currently before the Court is Plaintiff’s Motion for Order Authorizing and Directing
Constructive Service Pursuant to Arkansas Code § 16-65-501(c) (Doc. 23). Plaintiff
explains that she engaged the services of a private investigator to locate Defendant and,
subsequently, attempted to serve him with a Motion to Revive Judgment (Doc. 21).
Despite multiple attempts to effectuate service, she has not been successful in serving
the Defendant. Now, Plaintiff asks this Court to authorize and direct constructive service
pursuant to Arkansas Code § 16-65-501(c). The Court GRANTS IN PART AND DENIES
IN PART the Motion and ORDERS the following:
1.

Plaintiff shall serve Defendant within 60 days of the entry of this Order;

2.

Plaintiff is authorized to serve Defendant by Warning Order through
publication in the following counties:

Benton County, Arkansas;

Washington County, Arkansas; Montgomery County, Texas; Christian
County, Missouri; Winston County, Alabama; and Bernalillo County, New
Mexico. Such service must comply with the rules of service by publication
in effect in those states. See Ark. R. Civ. P. 4(g)(3); Ala. R. of Civ. P. 4.3;
N.M. R. Dist. Ct. 1-004(K); Mo. R. Civ. P. 54.12(c); Tex. R. Civ. P. 116;

3.

Plaintiff is directed to provide the Court with proof of service as soon as
reasonably possible;

4.

Plaintiff is instructed to mail the Warning Order to the Defendant’s last
known address by certified mail with a return receipt requested and delivery
restricted to Defendant and additionally by regular first class mail;

5.

Plaintiff is directed to prepare the Warning Order and submit it to the Clerk
of Court for signature; and

6.

Plaintiff is advised that the body of the Warning Order should include the
following language:
You are hereby notified that Plaintiff Lorene Charles, by and through
her attorney, Matthew L. Fryar of Crouch, Harwell, Fryar & Ferner,
PLLC, has filed a Motion to Revive Judgement against you, a copy
of which shall be delivered to you or your Attorney upon request. You
are also notified that you must appear and defend by filing your
Response within thirty (30) days of the date of the first publication of
this Warning Order and, in the event of your failure to do so, a
Judgment by Default will be entered against you for the relief
demanded.

IT IS SO ORDERED on this 27th day of May, 2021.

______________________________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE