World Chess Museum, Inc. v. World Chess Federation, Inc. et al

Filing 15

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the plaintiff's motion for leave to effect service by publication [Doc. #6] is granted. IT IS FURTHER ORDERED that plaintiff shall cause to be published in the Las Vegas Review-Journal, a newspaper of general circulation published in Las Vegas, Nevada, a notice of service by publication which complies in all respects with Nev. R. Civ. P. 4(e)(1)(iii)). Such notice shall be published at least once a week for four consecutive weeks and shall sta te the date of its first publication. IT IS FURTHER ORDERED that plaintiff shall send by U.S. mail a summons and copy of the complaint to defendants at the following address: Stan Vaughan World Chess Federation, Inc. 2533 East Palmera Drive Las Vegas, NV 89121-4021. Signed by Honorable Carol E. Jackson on 4/4/12. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WORLD CHESS MUSEUM, INC.,
Plaintiff,
vs.
WORLD CHESS FEDERATION, INC.,
et al.,
Defendants.

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No. 4:12-CV-89 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the plaintiff’s motion for an order allowing
plaintiff to serve process on defendants by publication. Defendant Stan Vaughan has
filed a document titled “Entry of Special Appearance with Memorandum in Support” in
which he states that he is appearing for the limited purpose of challenging personal
jurisdiction and “to assert constitutional immunity as separate federal court previously
acquired jurisdiction to the exclusion of this court.” (Doc. #8).1 The document also
contains a response to the plaintiff’s motion.
Plaintiff asserts that service by publication with respect to Vaughan and
defendant World Chess Federation, Inc. (WFC) is appropriate because defendants have
used concealment to avoid service through other means. In support of its motion,
plaintiff has submitted the affidavits of its attorney and of Maurice Hicks, Sr., the
process server plaintiff retained (Doc. #6-1 and #6-2). Plaintiff’s counsel states that

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Vaughan also purported to file this memorandum on behalf of defendant
World Chess Federation, Inc., as its president. While an individual may appear pro
se, a business entity must appear through counsel admitted to practice before the
Court. As such, the Court cannot accept any filings by Vaughan on behalf of his codefendant and has ordered Vaughan to cease his attempts to do so. (Doc. #11).

he and Vaughan have exchanged correspondence regarding the trademark dispute
involved in this lawsuit.

However, Vaughan did not respond to counsel’s request for

an alternate address for service. The Hicks affidavit describes the multiple attempts
to serve defendants at the address from which Vaughan has sent and received
correspondence and that is listed with the Nevada Secretary of State for service on
WCF’s registered agent. In his response to the motion, Vaughan states that attempts
by Hicks to effect service at the address constitute trespassing.
Under Fed. R. Civ. P. 4(e)(1), service may be made 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.” Fed. R. Civ. P. 4(e)(1).
Under Fed. R. Civ. P. 4(h), service upon a corporation may be effected in the manner
prescribed for service upon an individual under Fed. R. Civ. P. 4(e)(1).

Thus,

defendants--located in Nevada--may be served by those methods proscribed by either
Missouri or Nevada law. Morningstar Holding Corp. v. G2, LLC, No. CV-10-439, 2010
WL 4641274 *3 (D. Idaho 2010). In addition, due process requires that the method
of service be “reasonably calculated under all the circumstances to apprise interested
parties of the pendency of the action and afford them an opportunity to present their
objections.” Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 314–15 (1950).
Missouri law provides that service by publication “will not support an in
personam judgment unless the party sought to be subjected thereto has otherwise
voluntarily entered his [or her] appearance.” Exertron L.L.C. v. M.I.K.E. Biomechanical
Systems, B.V., No. 4:07-CV-285, 2007 WL 1567041 *1 (E.D.Mo. 2007).

Under

Nevada law, however, Rule 4(e)(1) of the Nevada Rules of Civil Procedure provides
that, “a party may file a motion for service by publication when the opposing party
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‘resides out of the state, or has departed from the state, or cannot, after due diligence
be found within the state, or conceals himself to avoid the service of summons.’”
National Union Fire Ins. Co. of Pittsburgh, PA v. Monroe, No. 2:10-CV-00385, 2011 WL
383807 *2 (D. Nev. 2011) (quoting Nev. R. Civ. P. 4(e)(1)(i)). A party seeking service
by publication “must seek leave of court by filing an affidavit demonstrating its due
diligence in attempting to personally serve the defendant.”

Id.

“Nevada courts

principally consider the number of attempts made by plaintiffs to serve the defendants
at their residence” and whether plaintiff has exhausted other reasonable methods of
locating and serving defendants. Id.
The requirements for service by publication under Nevada law are:
the publication [is] to be made in a newspaper, published in the State of
Nevada, to be designated by the court or judge thereof, for a period of
4 weeks, and at least once a week during said time . . . In case of
publication, where the residence of a nonresident or absent defendant is
known, the court or judge shall also direct a copy of the summons and
complaint to be deposited in the post office, directed to the person to be
served at the person's place of residence. The service of summons shall
be deemed complete in cases of publication at the expiration of 4 weeks
from the first publication, and in cases when a deposit of a copy of the
summons and complaint in the post office is also required, at the
expiration of 4 weeks from such deposit.
Nev. R. Civ. P. 4(e)(1)(iii)).
The Court finds that plaintiff has demonstrated that it has diligently attempted
to serve defendants, that it has been unable to effect service on defendants, and that
defendants are deliberately avoiding service of summons despite having actual
knowledge of this action. The efforts taken by plaintiff to effect service on defendants
are consistent with other cases in which Nevada courts have authorized service by
publication. See National Union Fire Ins. Co. of Pittsburgh, PA, 2011 WL 383807 *2
(comparing cases). Finally, Vaughan, who is also an officer of WCF, has received
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actual notice of this action. Thus, the method of service proposed by plaintiff, while
a necessary formality, does not implicate the due process concerns typically associated
with service by publication. Cf. Mullane, 339 U.S. 306.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff’s motion for leave to effect service
by publication [Doc. #6] is granted.
IT IS FURTHER ORDERED that plaintiff shall cause to be published in the Las
Vegas Review-Journal, a newspaper of general circulation published in Las Vegas,
Nevada, a notice of service by publication which complies in all respects with Nev. R.
Civ. P. 4(e)(1)(iii)). Such notice shall be published at least once a week for four
consecutive weeks and shall state the date of its first publication.
IT IS FURTHER ORDERED that plaintiff shall send by U.S. mail a summons and
copy of the complaint to defendants at the following address:
Stan Vaughan
World Chess Federation, Inc.
2533 East Palmera Drive
Las Vegas, NV 89121-4021

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 4th day of April, 2012.

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