Financial Indemnity Company v. Edwards et al

Filing 34

ORDER Granting Plaintiff's 33 Motion for Leave to Serve Jin Edwards Through Alternative Means. Signed by Magistrate Judge Cam Ferenbach on 9/8/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FINANCIAL INDEMNITY COMPANY,
Plaintiff,

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Case No. 2:14–cv–484–MMD–VCF

vs.
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JIN EDWARDS, et al.,

ORDER

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Defendant.
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This matter involves Financial Indemnity Services’ actions for declaratory relief against Jin

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Edwards, Chin Edwards, Anthony Spann, and Joseph Corpuz. (See Compl. (#1) at 9–10). Before the

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court is Financial Indemnity Services’ motion for leave to serve Jin Edwards through alternative means

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(#33). The motion is unopposed. For the reasons stated below, Financial Indemnity Services’ motion is
granted.

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BACKGROUND
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Jin Edwards is insured by Financial Indemnity Services. On April 26, 2012, Jin allegedly caused
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a car accident. (See Pl.’s Mot. (#33) at 2:7). As a result, Chin Edwards, Anthony Spann, and Joseph
Corpuz sustained injuries. (Id.) On April 1, 2014, Financial Indemnity Services commenced this action.

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It seeks declaratory relief to determine whether “a pre-lawsuit settlement agreement . . . should be

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enforced.” (Id. at 2:10–11).

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Financial Indemnity Services’ deadline to serve Jin Edwards will expire on September 28, 2014.

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(See Order #22). To date, however, Financial Indemnity Services has been unable to serve Jin Edwards.

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It hired a private investigator, Ally Investigations; but no progress has been made. Consequently, on

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August 19, 2014, Financial Indemnity Services filed the instant motion for leave to serve Jin Edwards

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through alternative means. The company seeks to serve Jin Edwards under Nevada Revised Statute
14.070(1), which permits plaintiffs to serve defendants through the Nevada Department of Motor
Vehicles.
LEGAL STANDARD

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Rule 4 governs service of the summons and complaint. Rule 4(e) stated that “[u]nless federal law

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provides otherwise, an individual . . . may be served in a judicial district of the United States by

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following state law for serving a summons in an action brought in courts of general jurisdiction in the

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state where the district court is located.” In turn, Nevada Revised Statute 14.070(1) provides that a state-

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court plaintiff may serve a defendant through the Nevada Department of Motor Vehicles “in any action

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or proceeding . . . growing out of” the use of a motor vehicle that is registered in Nevada.
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DISCUSSION
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Financial Indemnity Services’ motion is granted for two reasons. First, none of the previously
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served defendants oppose the motion. Under Local Rule 7-2, this constitutes consent to the granting of
the motion. See LR 7-2(d) (“The failure of an opposing party to file points and authorities in response to
any motion shall constitute a consent to the granting of the motion.”).

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Second, Financial Indemnity Services satisfied its burden under Nevada Revised Statute

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14.070(1). The statute places an “affirmative obligation to diligently search for the resident motorist

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defendants to determine whether they have departed the state or cannot be located within the state”

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before serving the defendant through the Department of Motor Vehicles. Mendakota Ins. Co. v. Vargas-

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Antigua, No. 2:13–cv–00238–RCJ–CWH, 2013 WL 2096415 at *3 (D. Nev. May 14, 2013) (citing
Austin v. C & L Trucking, Inc., 610 F. Supp. 465 (1985); Browning v. Dixon, 114 Nev. 213 (1998)).

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Financial Indemnity Services met this burden. It retained a private investigator, Ally Investigations, and
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has been diligently searching for Jin Edwards since it commenced this action. (See, e.g., Doc. #22)
(seeking an extension of time to serve Jin Edwards).

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ACCORDINGLY, and for good cause shown,

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IT IS ORDERED that Financial Indemnity Services’ motion for leave to serve Jin Edwards

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through alternative means (#33) is GRANTED.

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IT IS SO ORDERED.

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DATED this 8th day of September, 2014.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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