Bank of America, N.A. v. Bailey et al

Filing 7

ORDER that 6 Motion to Extend Time to Serve re 1 Complaint is GRANTED. FURTHER ORDERED that Plaintiff's Motion for Service by Publication 6 is granted as to Defendant Samuel R. Bailey and DENIED without prejudice as to Defendant Pete G. Aguilar. Signed by Magistrate Judge George Foley, Jr on 10/9/14. (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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BANK OF AMERICA, N.A,

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Plaintiff,
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vs.
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SAMUEL R. BAILEY; PETE G. AGUILAR;
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DOES 1 through 10, inclusive
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Defendant.
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__________________________________________)

Case No. 2:14-cv-00885-JCM-GWF
ORDER
Motion to Extend Time to Serve
Complaint - #6

This matter is before the Court on Plaintiff’s Motion to Extend Time to Serve the
Complaint Upon Samuel R. Bailey and Pete G. Aguilar (#6), filed October 6, 2014.

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Pursuant to Fed. R. Civ. P. 6(b) and LR 6, extensions of time may be granted for good cause

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shown. Furthermore, pursuant to Fed. R. Civ. P. 4(m), service must be completed within 120 days

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after the complaint is filed unless the plaintiff shows good cause for the failure to serve, to which

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the Court must extend the time for service for an appropriate period. The service deadline in this

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case was October 3, 2014. Plaintiff provided proof that it attempted to serve the Defendants

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multiple times between October 1 and October 3. Plaintiff has been unsuccessful in service so far,

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and has demonstrated good cause to grant an extension for the time to serve.

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Plaintiff also petitions the Court for leave to serve Defendants by publication. Pursuant to

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Fed.R.Civ.P. 4(e), service of summons by publication is governed by the law of the state in which

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the District Court is located. Nevada Rule of Civil Procedure 4(e)(1)(I) provides that the Court

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may permit service by publication if, after demonstration of due diligence, the plaintiff is unable to

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find the defendant within the state or the plaintiff shows that defendants are within the state but

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avoiding the service of summons. The plaintiff must prove this to the satisfaction of the court

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either by affidavit or by a verified complaint. The question of due diligence is within the court’s

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discretion as there is no objective, formulaic standard for determining what is, or is not, due

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diligence under Nevada law. Abreu v. Gilmer, 985 P.2d 746, 749 (Nev. 1999).

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Plaintiff argues that despite its best efforts, it has been unable to effect personal service of

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process on Defendants Bailey and Aguilar. See Doc. #6. Pursuant to the Affidavit of Due

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Diligence (Doc. #6 at Exhibit 1) attached to Plaintiff’s motion, a process server attempted service

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on Defendant Bailey at his last known address in Las Vegas, Nevada, on October 1, 2014 at 5:56

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P.M. The perimeter gate was locked, and the server never reached the door. Id. Another attempt

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was made on October 2, 2014, at 8:10 P.M. The gate was still locked, and the server could not

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reach the door, though the windows were open and he could hear a dog barking inside. Id. The

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server then attempted to serve Defendant Bailey at High Desert Petroleum, Inc., on October 3, 2014

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at 11:04 A.M. The server was turned away, as the Defendant was not available and does not keep

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set hours. Id. Another attempt was made at 369 N. 13th St., Las Vegas, NV, on October 3, 2014,

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but the server was told no one knew the Defendant at that address. Id. A final search was made via

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the Assessor’s Office, United States Postal Service, Clark County Voter Registration, Local

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Telephone Directory, and National Proprietary Non-Public Databases, all of which failed to provide

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an alternative address. Id. Based on these facts, Plaintiff has demonstrated that despite its due

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diligence, Plaintiff is unable to find or serve Defendant Bailey.

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Plaintiff claims it has attempted to serve Defendant Aguilar at his home address, but it has

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been foreclosed on. Dkt. #6, p.3. Plaintiff has contacted Defendant’s attorney to attempt to learn

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his address, but were unsuccessful. Id. Plaintiff has not shown, however, that it has conducted a

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reasonable investigation to determine Defendant’s current place of residence such that personal

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service may be made upon him. This is insufficient to constitute due diligence. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motion to Extend Time to Serve (#6) is

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granted. Plaintiffs shall have sixty (60) days from the date of this order to serve the complaint

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upon the Defendants.

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Service by Publication (#6) is

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granted as to Defendant Samuel R. Bailey. Defendant Samuel Bailey may be served by Plaintiff

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through publication. Plaintiff shall publish the summons and complaint at least once a week for
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four (4) consecutive weeks in a newspaper of general circulation published in Clark County,

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Nevada. Plaintiff must also mail by U.S. Post Office a copy of the summons and complaint to

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Defendant Bailey’s last known residence pursuant to N.R.S. 4(e)(1)(iii).

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Service by Publication (#6) for

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Defendant Pete G. Aguilar is denied without prejudice.

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DATED this 9th day of October, 2014.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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