Bonner v. Leon et al

Filing 18

ORDER that 16 Motion to Extend Time to Serve the Leons and C&H Soda Blasting is GRANTED. FURTHER ORDERED that 17 Motion for Service by Publication is GRANTED. Signed by Magistrate Judge Cam Ferenbach on 12/16/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LAWRENCE S. BONNER,
2:13–cv–1858–APG–VCF

Plaintiff,

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vs.

ORDER

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CARLOS LEON, et al.,
Defendants.

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This matter involves Plaintiff Lawrence S. Bonner’s contract claims against, inter alia, Carlos

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Leon. Before the court are Bonner’s motions to extend time for service of process (#161) and motion to

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serve Defendants by publication (#17). For the reasons discussed below, Bonner’s motions are granted.

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BACKGROUND

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Bonner is a classic-car enthusiast, collector, and restorer. (See Compl. (#1-1) at ¶¶ 12–18). Over

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the course of his career, Bonner has owned more than 150 classic cars and motorcycles, including Steve

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McQueen’s iconic 1971 Husqvarna 400 cross motorcycle, which was featured on the cover of Sports
Illustrated in August of 1971. (Id. at ¶ 14). Bonner displays his vintage cars at shows throughout

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California and Nevada. (Id. at ¶ 15). To date, cars in his collection have taken six First Place trophies.
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(Id.)
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Bonner also owes a 1964 Chevy Nova station wagon. (Id. at ¶ 16). Approximately three years

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ago, Bonner took the wagon to C&H Soda Blasting for repair and restoration. (Id. at ¶ 17). C&H is

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Parenthetical citation refer to the court’s docket.

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owned by husband and wife, Carlos and Carmen Leon. (Id.) After completing some of the restoration
work that the wagon required, the Leons disappeared. (See Pl.’s Mot. (#16) at 2). They moved their
shop, changed addresses, and absconded with Bonner’s wagon. (Id.)

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Bonner contacted the police; but “they could not help.” (Id.) Consequently, on August 6, 2013,

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Bonner filed suit against the Leons, C&H Soda Blasting, and Bonner’s insurance companies, which

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failed to investigate and pay his claim. (Id. at 3:8–10). On October, 10, 2013, the insurance Defendants

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answered and removed Bonner’s action to federal court. (Id.)

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To date, however, Bonner has been unable to serve the Leons or C&H Soda Blasting. (Id.)
Bonner has remained in telephonic communication with the Leons. (Id. at 2). But, they only taunt him.

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(Id.) Every time the Leons call, they say that the car will be finished and returned “in two weeks.” (Id.)
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This has been going on for months. The Leons even gave Bonner the address of their “new shop.” (Id.)
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Bonner drove to the address only to find an empty lot. (Id. at 3).
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In an attempt to locate the Leons, Bonner has searched the secretary of state’s public records,
hired multiple private investigators, and employed two of his own employees to conduct independent

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research and investigate the Leons current location. (Id. at 4). Bonner has discovered that the Leons

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declared bankruptcy sometime in the last two years, and that they “were fairly recently evicted” from an

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apartment in Las Vegas, Nevada. (Id.)

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All of Bonner’s attempts to personally serve the Leons, however, have failed. Accordingly, on

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December 6, 2013, Bonner requested the court to grant him an additional 120 days to serve the Leons

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and permit him to serve the Leons by publication.
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DISCUSSION

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Bonner’s motions raise two questions: (1) whether the court may extend the time to serve the

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Leons under Federal Rule of Civil Procedure 4(m); and, (2) whether Bonner may serve the Leons by

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publication under Nevada Rule of Civil Procedure 4(e)(1)(i). Both questions are addressed below.

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A.

Bonner’s Motion to Extend Time is Granted

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Bonner’s motion to extend the time to serve the Leons and C&H Soda Blasting is granted.

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Courts have broad discretion to extend time for service under Rule 4(m). Efaw v. Williams, 473 F.3d

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1038, 1041 (9th Cir. 2003). The Supreme Court has stated that the 120–day time period for service

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contained in Rule 4(m) “operates not as an outer limit subject to reduction, but as an irreducible

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allowance.” Henderson v. United States, 517 U.S. 654, 661 (1996). “On its face, Rule 4(m) does not tie

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the hands of the district court after the 120–day period has expired. Rather, Rule 4(m) explicitly permits

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a district court to grant an extension of time to serve the complaint after that 120–day period.” Mann v.

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American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). The Advisory Committee Notes to Rule 4(m)

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state that the rule “explicitly provides that the court shall allow additional time if there is good cause for

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the plaintiff’s failure to effect service in the prescribed 120 days, and authorizes the court to relieve a

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plaintiff of the consequences of an application of [Rule 4(m)] even if there is no good cause shown.” See

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FED. R. CIV. P. 4(m), Advisory Committee Notes, 1993 Amendments.
Generally, “good cause” is equated with diligence. See WRIGHT & MILLER, FEDERAL PRACTICE

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PROCEDURE: CIVIL 3D § 1337. In the Ninth Circuit, a showing of good cause requires more than

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AND

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simple inadvertence, mistake of counsel, or ignorance of the rules. See National Union Fire Ins. Co. v.

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Monroe, No. 10–cv–0385, 2011 WL 383807, at *1 (D. Nev. Feb. 2, 2011). “At a minimum, good cause

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means excusable neglect. A plaintiff may also be required to show the following: (a) the party to be

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served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and

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(c) the plaintiff would be severely prejudiced if his complaint were dismissed.” Boudette v. Barnette,

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923 F.2d 754, 756 (9th Cir.1991).

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Bonner has satisfied this standard. Since Bonner initiated this action, he has remained in

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telephonic contact with the Leons and taken pointless trips, at the Leons’ behest, in an attempt to locate

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them. (See Pl.’s Mot. (#16) at 2–3). He has also (1) searched the secretary of state’s public records,

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(2) hired multiple private investigators, and (3) employed two of his own employees to conduct

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independent research and investigate the Leons current location. (Id. at 4). This constitutes “diligence.”

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B.

Bonner’s Motion to Serve the Leons & C&H Soda Blasting by Publication is Granted

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Bonner’s motion to serve the Leons and C&H Soda Blasting by publication is also granted. The

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Federal Rules of Civil Procedure do not expressly permit service by publication. Rule 4(e)(1), however,

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permits a plaintiff to serve a defendant “following state law for serving a summons in an action brought

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in courts of general jurisdiction in the state where the district court is located or where service is made.”

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FED. R. CIV. P. 4(e)(1).

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In Nevada, Rule 4 of the Nevada Rules of Civil Procedure governs service of parties under state

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law. Parties are required to personally serve summons and the complaint upon defendants; however,

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when personal service proves impossible, Rule 4(e)(1)(i) provides that a party may move for service by

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publication when the opposing party “resides out of the state, or has departed from the state, or cannot,

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after due diligence be found within the state, or conceals himself to avoid the service of summons.” Id.

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“A party seeking service by publication must seek leave of court by filing an affidavit

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demonstrating its due diligence in attempting to personally serve the defendant. There are several key

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factors Nevada courts look to in evaluating a party’s due diligence in effecting service.” Id. Nevada

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courts principally consider the number of attempts made by a plaintiff to serve a defendant at his or her

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residence and other methods of locating defendants, such as consulting public directories and family

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members. Id.; citing Price v. Dunn, 106 Nev. 100, 787 P.2d 785, 786–7 (Nev. 1990), rev’d on other

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grounds, NC–DSH, Inc. v. Garner, 125 Nev. 647, 651 n. 3, 218 P.3d 853 (2009); Abreu v. Gilmer, 115

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Nev. 308, 985 P.2d 746, 747 (Nev. 1999); McNair v. Rivera, 110 Nev. 463, 874 P.2d 1240, 1241 (Nev.

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1994).

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In Price, for instance, the Nevada Supreme Court found service by publication was not

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warranted, stating “where other reasonable methods exist for locating the whereabouts of a defendant,

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plaintiff should exercise those methods.” 787 P.2d at 786–7. There, the plaintiff contacted the

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defendant’s stepmother, and upon hearing that the defendant lived out of state, moved for service by

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publication. Id. at 105, 787 P.2d 785. The Price court held that, “although [plaintiff’s] affidavit

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technically complies with Rule 4(e)(1)(i), her actual efforts, as a matter of law, fall short of the due

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diligence requirement to the extent of depriving [defendant] of his fundamental right to due process.” Id.

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In contrast, in Abreu, the Nevada Supreme Court determined that the plaintiff exercised due

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diligence in attempting service because it made three attempts at the defendant’s possible address and

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also consulted telephone company directories. See 115 Nev. at 311. The Rosenstein’s efforts, so far, fall

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short of the plaintiff’s efforts in Abreu.

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Here, Bonner met the threshold requirement of submitting an “affidavit.” See NEV. R. CIV. P.

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4(e)(1)(i); (see also Pl.’s Mot. (#16) at Ex. A–B). Additionally, Bonner has exceeded the efforts

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displayed by the plaintiffs in both Price and Abreu. Bonner has: (1) remained in telephonic contact with

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the Leons; (2) taken pointless trips, at the Leons’ behest; (3) searched the secretary of state’s public

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records; (4) hired multiple private investigators; and (5) employed two of his own employees to conduct

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independent research and investigate the Leons current location. (Id. at 2–4). This is sufficient to permit

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service of process by publication under Nevada law.

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ACCORDINGLY, and for good cause shown,

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IT IS ORDERED that Plaintiff Lawrence S. Bonner’s motion to extend time to serve the Leons

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and C&H Soda Blasting (#16) is GRANTED. Bonner has an additional 120 days from the date of this

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order to perfect service.

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IT IS FURTHER ORDERED that Plaintiff Lawrence S. Bonner’s motion to serve the Leons and
C&H Soda Blasting by publication (#17) is also GRANTED.

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IT IS SO ORDERED.

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DATED this 16th day of December, 2013.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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