WELLS FARGO BANK NA v. DODGE

Filing 32

ORDER ON PLAINTIFF'S MOTION FOR ALTERNATE SERVICE granting 31 Motion for Service via Alternate Means By MAGISTRATE JUDGE KAREN FRINK WOLF. (mmy)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
WELLS FARGO BANK, N.A.,
AS TRUSTEE FOR THE HOLDERS
OF SASCO 2007-MLN1,
Plaintiff
v.
JAMES C. DODGE,
Defendant

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No. 2:22-cv-00412-LEW

ORDER ON PLAINTIFF’S MOTION FOR ALTERNATE SERVICE
Wells Fargo Bank, N.A., as Trustee for the Holders of SASCO 2007-MLN1,
asks the Court to grant its motion for alternate service upon James C. Dodge by
deeming a prior attempted service sufficient in light of Dodge’s actual knowledge of
this suit. See Motion (ECF No. 31). For the reasons that follow, I grant the motion
with the proviso that Wells Fargo mail a copy of the complaint, summons, and this
order in an envelope addressed to Dodge at his residence and file an affidavit with
the Court demonstrating its compliance with this order.
I.

Legal Standard

“Under Federal Rule of Civil Procedure 4(e), service may be accomplished by
delivering a copy of the summons and the complaint to the individual personally,
leaving a copy at the individual’s dwelling or usual place of abode with someone of
suitable age and discretion who resides there, [or] delivering a copy to an agent
authorized by appointment or by law to receive service of process . . . .” Edson v.
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Riverside Psychiatric Ctr., No. 1:16-cv-00079-JAW, 2016 WL 3257003, at *2 (D. Me.
June 13, 2016); Fed. R. Civ. P. 4(e)(2). Service may also be accomplished “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.” Edson,
2016 WL 3257003, at *2; Fed. R. Civ. P. 4(e)(1).
Maine law allows service by alternate means “on motion upon a showing that
service cannot with due diligence be made by another prescribed method.” Me. R.
Civ. P. 4(g)(1); Me. R. Civ. P. advisory committee’s note to 2010 amendment (“Before
a party can obtain an order allowing service by any alternate means, that party must
first demonstrate that he or she has exhausted all reasonable attempts to make
service in one of the other ways prescribed by Rule 4 (or by applicable statute) that
are designed to provide actual notice of the action to the party to be served.”).
To meet that standard, the movant must provide “a draft, proposed order to
provide the requested service by alternative means,” containing the content specified
in Rule 4(g)(2), as well as an affidavit showing that (1) the movant “has demonstrated
due diligence in attempting to obtain personal service of process in a manner
otherwise prescribed by Rule 4 or by applicable statute,” (2) “[t]he identity and/or
physical location of the person to be served cannot reasonably be ascertained, or is
ascertainable but it appears the person is evading process,” and (3) “[t]he requested
method and manner of service is reasonably calculated to provide actual notice of the
pendency of the action to the party to be served and is the most practical manner of
effecting notice of the suit.” Me. R. Civ. P. 4(g)(1)-(2). Maine allows alternate service

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to be made “by leaving a copy of the order authorizing service by alternate means, the
summons, complaint, and notice regarding Electronic Service at the defendant’s
dwelling house or usual place of abode,” “by publication unless a statute provides
another method of notice,” or “electronically or by any other means not prohibited by
law.” Me. R. Civ. P. 4(g)(1).
II. Background
Beginning in January 2023, Wells Fargo made multiple attempts to serve
Dodge at his residence—the property in Windham, Maine, that is the subject of this
foreclosure action.

A deputy sheriff attempted to serve process on Dodge on

January 11, 14, and 19, 2023, at the subject property address, but there was no
response. Affidavit of Reneau J. Longoria, Esq. (ECF No. 31-1) ¶¶ 2-4. The deputy
left her business card with her contact information at the residence on the first two
attempts. Id. The deputy spoke with neighbors who stated that Dodge did live at the
property address but that they seldom saw him and he seldom left his home. Id. ¶ 5.
The deputy also observed a black pickup truck on the premises on each occasion she
attempted service. Id. ¶ 6. Wells Fargo next hired a process server who attempted
to serve Dodge multiple times between February 21, 2023, and March 3, 2023, but
Dodge did not answer his door. Id. ¶¶ 7-8, 12. The process server spoke to neighbors
who confirmed that Dodge resided at the subject property address and was
well-known to them. Id. ¶¶ 9-10. When the process server made his final attempt to
serve Dodge on March 3, 2023, he left the summons and complaint at the subject
property. Id. ¶ 12.

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On March 31, 2023, counsel for Wells Fargo filed a motion to stay and refer
this matter to the State of Maine Foreclosure Diversion Program for mediation, which
the Court granted on the same date. Id. ¶ 13. On July 14, 2023, Dodge and three
others—a representative of Wells Fargo, counsel for Wells Fargo, and a housing
counselor—attended a mediation held by Zoom. Id. ¶ 14. During the mediation,
Dodge expressed his interest in retaining the subject property, and the parties
continued the mediation to allow him to pursue his options. Id. ¶ 15. That day a copy
of the summons, complaint, and an acceptance of service were sent to the housing
counselor, whom the parties had agreed would serve them upon Dodge. Id. ¶ 16.
Mediation resumed on October 27, 2023, but was unsuccessful. Id. ¶ 21. The housing
counselor never received an acceptance of service from Dodge. Id. ¶ 22.
III.

Discussion

Wells Fargo has demonstrated both its diligence in its efforts to serve Dodge
by traditional methods and the futility of any such further efforts. Dodge avoided
service by both a deputy sheriff and a process server and then failed to return an
acceptance of service as contemplated by the parties in mediation. Dodge also plainly
has actual notice of the pendency of this action.
One issue remains: whether Wells Fargo’s proposed form of service is
appropriate.

I conclude that it is, with the proviso that Wells Fargo take the

additional steps of (1) mailing a copy of the complaint, summons, and this order in an
envelope addressed to Dodge at his residence and (2) filing an affidavit on the docket
demonstrating its compliance with this order.

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Wells Fargo asks that this Court both grant its motion for alternative service
and deem that service complete on the basis of its March 3, 2023, delivery of the
summons and complaint to Dodge’s residence and Dodge’s later participation in
mediation designed to resolve this foreclosure suit. See Motion at 1 (citing ECF No.
17-2). Yet, as this Court has recognized, even in cases in which a defendant has actual
knowledge of a lawsuit, Maine Rule of Civil Procedure 4(g) contemplates the
authorization of proposed alternative service, not merely the retrospective approval
of steps already taken in a failed attempt to effectuate service by traditional means.
See Me. R. Civ. P. 4(g)(1); Fed. Nat’l Mortg. Ass’n v. Pierce, No. 1:22-cv-00281-LEW,
2024 WL 69635, at *2 (D. Me. Jan. 5, 2024) (directing, in a case in which the plaintiff
moved for alternate service based on a prior mailing to the defendant plus the
defendant’s actual knowledge of the case, that the plaintiff also post a copy of the
amended complaint, summons, and the Court’s order at the defendant’s residence);
Pierce, ECF No. 36 at 2 (D. Me. Mar. 20, 2024) (observing that Rule 4(g) contemplates
that a party will obtain leave of court to serve by alternate means before service is
made” (emphasis added)). Accordingly, I direct that Wells Fargo mail a copy of the
complaint, summons, and this order in an envelope addressed to Dodge at his
residence.
Pursuant to Rule 4(g)(3), Wells Fargo shall also file with the Court “an affidavit
demonstrating that . . . compliance with [this] order has occurred.” Me. R. Civ. P.
4(g)(3); Girard v. Dodd, No. 2:16-cv-165-DBH, 2016 WL 4734373, at *1 (D. Me. Sept.
9, 2016) (observing that the plaintiff complied with Rule 4(g)(3) when, among other

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things, he filed an affidavit with the Court averring that alternate service had been
made as ordered). Service shall be deemed complete upon the date of the filing of the
required affidavit on the Court’s docket. See Me. R. Civ. P. 4(g)(3) (directing that
service by alternate means “is complete on the twenty-first day after the first service
or as provided in the court’s order” (emphasis added)).
IV. Conclusion
For the foregoing reasons, Wells Fargo’s motion for alternate service is
GRANTED as follows.

Service may be accomplished by leaving a copy of the

summons and complaint at Dodge’s residence as reflected on the docket (ECF No.
17-2) and by mailing a copy of the summons, complaint, and this order to Dodge at
his residence.

Wells Fargo shall then file an affidavit on the Court’s docket

demonstrating its compliance with this order, at which time service shall be deemed
complete.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may
serve and file an objection to this order within fourteen (14) days after being
served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to review by the District Court and to any further appeal of this order.
Dated: March 27, 2024
/s/ Karen Frink Wolf
United States Magistrate Judge

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