GIRARD v. DODD et al

Filing 15

PROCEDURAL ORDER ON PLAINTIFF'S MOTION TO EXTEND TIME TO SERVE STEPHEN DODD AND FOR SERVICE BY ALTERNATE MEANS mooting 13 Order to Show Cause. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BERTRAND GIRARD,
PLAINTIFF
V.

STEPHEN DODD, ROGER BEAUPRE
AND CITY OF BIDDEFORD,
DEFENDANTS

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CIVIL NO. 2:16-CV-165-DBH

PROCEDURAL ORDER ON PLAINTIFF’S MOTION TO EXTEND TIME TO
SERVE STEPHEN DODD AND FOR SERVICE BY ALTERNATE MEANS
Pursuant to Federal Rule of Civil Procedure 4(m), 4(e)(1), and Maine Rule
of Civil Procedure 4(g), the plaintiff Girard moves to extend the time to serve the
defendant Stephen Dodd and to allow service by alternate means—specifically,
by effecting service on his counsel of record in a related matter pending in this
court or by serving Dodd by publication in The Northwest Florida Daily News, a
newspaper of general circulation in Okaloosa County, Florida, and The Ledger,
a newspaper of general circulation in Polk County, Florida.
As the plaintiff accurately recites in his memorandum, the federal rule
provides that a defendant may be served by following state law, and Maine law
allows services by alternate means “upon a showing that service cannot with due
diligence be made by another prescribed method . . . .” M.R. Civ. P. 4(g)(1); see
Fed. R. Civ. P. 4(e). I conclude that the plaintiff has met the standard of M.R.
Civ. P. 4(g)(1). Rule 4(g) of the Maine Rules also provides, however, that any

motion for service by alternate means “shall be supported by (i) a draft, proposed
order to provide the requested service by alternate means” and goes on to
explicitly state what the contents of such an order must include. M.R. Civ. P.
4(g)(1)(A)-(C), (g)(2) (emphasis added). The plaintiff has not submitted a proposed
order with his motion, and is therefore directed to do so, in compliance with the
rule. I expect the draft order to include both the proposed service on counsel
and publication, not one or the other in the disjunctive, and also to provide for
service at the defendant’s last known address in Crestview, Florida where service
upon a person living there in a related case, although challenged, ultimately led
to acceptance of service by a lawyer on behalf of the defendant. See Okaloosa
Cty. Sheriff’s Office Non-Enforceable Return of Service, Lauzon v. Dodd, No.
2:16-cv-51-DBH (ECF No. 3-2); Acceptance of Service, Lauzon v. Dodd, No. 2:16cv-51-DBH (ECF No. 23).
In doing so, I note that the Law Court has made very clear that service by
publication in a newspaper is an absolute “last resort that a party should attempt
only when it has exhausted other means more likely to achieve notice.” Gaeth
v. Deacon, 2009 ME 9, ¶ 26, 964 A.2d 621, 628. In this digital age, when fewer
and fewer people read newspapers in print, this type of service by publication is
“less likely to achieve actual notice of a lawsuit” and is therefore “less likely to
meet the requirements of due process.” Id. Indeed, the plaintiff may want to
consider additional alternative means such as digital media to ensure that the
proposed order is “reasonably calculated to provide actual notice of the pending
proceeding.” Id. (internal quotation marks omitted); see M.R. Civ. P. 4 advisory
committee’s notes to 2010 amend., 3A Harvey & Merritt, Maine Civil Practice 2462

47 (3d, 2015-2016 ed.) (“Even if service by publication is permitted, the court
may still require that notice be attempted or that notice of the publication be
provided to the party to be served through other alternative means, including
regular mail, certified mail or electronic mail sent both to the party to be served
and even conceivably to relatives, employers, or educational institutions recently
attended by the party.”); see, e.g., Scarcelli v. Gleichman, No. 2:12-cv-72-GZS,
2012 WL 1030140, at *2 (D. Me. Mar. 26, 2012) (ordering service by alternate
means through three different methods to ensure notice to the defendant).
Accordingly, the court’s Order to Show Cause is MOOT. (ECF No. 13.) The
plaintiff shall respond to this Order and submit a proposed draft order to
accompany his motion for service by alternate means in accordance with Maine
Rule of Civil Procedure 4(g)(1) and (2) by July 15, 2016.
SO ORDERED.
DATED THIS 29TH DAY OF JUNE, 2016
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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