First American Mortgage, Inc. v. First Home Builders of Florida et al

Filing 55

MINUTE ORDER denying without prejudice 51 Plaintiff's "Ex parte" Motion for Substitute Service, by Magistrate Judge Michael E. Hegarty on 9/27/2010. (mehcd)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 10-cv-00824-REB-MEH FIRST AMERICAN MORTGAGE, INC., Plaintiff, v. FIRST HOME BUILDERS OF FLORIDA, K. HOVNANIAN FIRST HOMES, LLC, FIRST HOME TITLE, BUILDERS MORTGAGE COMPANY, LLC, FIRST MORTGAGE LENDERS OF FLORIDA, LLC, D'ALESSANDRO & WOODYARD, INC., GATES D'ALESSANDRO & WOODYARD, INC., PATRICK LOGUE, an individual, and JAMES SUBLETT, an individual, Defendants. MINUTE ORDER Entered by Michael E. Hegarty, United States Magistrate Judge, on September 27, 2010. The Plaintiff's "Ex Parte" Motion for Substitute Service [filed September 24, 2010; docket #51] is denied without prejudice. Rule 4(e)(1) provides that an individual may be served by following state law in the state where service is made. Fed. R. Civ. P. 4(e)(1); see also Fed. R. Civ. P. 4(h)(1)(A) (service of corporations). Plaintiff provides no legal authority, and the Court has found none, requiring that a plaintiff seek leave of court before pursuing substituted service under Florida law. See Smith v. Leaman, 826 So.2d 1077, 1078 (Fla. App. 2 Dist. 2002) (after determining through investigation that defendant was concealing his whereabouts, the plaintiff filed an affidavit describing the efforts to serve defendant and informing the court that substituted service had been made on the Secretary of State in compliance with applicable statutes). The Plaintiff may re-file the motion identifying the proper legal authority if it determines that it must do so in accordance with federal or state law.