Nationwide Life Insurance Company et al v. Millberg et al

Filing 45

ORDER that 44 Second Motion for Service by Publication is GRANTED. FURTHER ORDERED that plaintiff shall mail a copy of the summons and complaint to defendant at 127 Sunset Road, Moriarty, New Mexico 87035. Signed by Magistrate Judge Carl W. Hoffman on 3/20/15. (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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NATIONWIDE LIFE INSURANCE CO., et al.,
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Plaintiffs,
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vs.
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CARL MILLBERG, et al.,
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Defendants.
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__________________________________________)

Case No. 2:14-cv-01586-APG-CWH
ORDER

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This matter is before the Court on Plaintiffs Nationwide Life Insurance Co. and Nationwide Life

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Annuity Insurance Co.’s (“plaintiffs”) Second Motion for Service by Publication (doc. # 44), filed

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March 19, 2015.

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BACKGROUND

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Plaintiffs renewed motion seeks an order permitting service by publication of Defendant Melvin

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Williams (“defendant”) under Federal Rule of Civil Procedure (“FRCP”) 4(e)(1) and Nevada Rule of Civil

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Procedure (“NRCP”) 4(e)(1)(i). Plaintiffs represent they have made “several diligent efforts to locate and

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serve” defendant. Doc. # 44-1 at 4. These efforts include hiring a private investigator, along with a third-

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party process server, to ascertain defendant’s address and attempt service.

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DISCUSSION

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FRCP 4(e)(1) provides that service may be accomplished on an individual, other than a minor, by

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

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where the district court is located and where service is made.” In Nevada, Rule 4 of the NRCP governs

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service of parties under state law. It generally requires personal service of the summons and complaint upon

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individual defendants. Alternatively, service may be accomplished by leaving the summons and complaint

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at the defendant’s dwelling house or usual place of abode with a person of suitable age and discretion

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residing therein, or by delivering the summons and complaint to an agent authorized to receive service.

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Nev. R. Civ. P. 4(d)(6). When personal service proves impossible, NRCP 4(e)(1)(i) provides that a party

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may move for service by publication when the opposing party “resides out of the state, or has departed from

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the state, or cannot, after due diligence be found within the state, or conceals himself to avoid the service

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of summons.”

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

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due diligence in attempting to personally serve the defendant. In evaluating due diligence, courts look to

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several factors. See Price v. Dunn, 787 P.2d 785, 786-87 (Nev. 1990); Abreu v. Gilmer, 985 P.2d 746, 747

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(Nev. 1999); McNair v. Rivera, 874 P.2d 1240, 1241 (Nev. 1994). There is no “objective, formulaic

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standard” for determining due diligence, but the Nevada Supreme Court has characterized the analysis as

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one measured by the quality of service efforts. Abreu, 985 P.2d at 749 (“Despite our previous decisions on

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this issue, we note that there is no objective, formulaic standard for determining what is, or what is not, due

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diligence. The due diligence requirement is not quantifiable by reference to the number of service attempts

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or inquiries into public records. Instead, due diligence is measured by the qualitative efforts of a specific

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plaintiff seeking to locate and serve a specific defendant.”).

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The Court has reviewed the record and finds that plaintiffs have demonstrated due diligence in their

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efforts to serve defendant. The retained private investigator made diligent efforts to verify defendant’s

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residence and to locate defendant for service. The retained third-party server also displayed diligent efforts

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to serve defendant by speaking with a resident located near defendant’s last known address, and making

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multiple attempts at service. Consequently, the request to serve by publication will be granted.
CONCLUSION AND ORDER

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Accordingly, IT IS HEREBY ORDERED that plaintiffs’ Second Motion for Service by Publication

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(doc. # 44) is granted.

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IT IS FURTHER ORDERED that plaintiff shall mail a copy of the summons and complaint to
defendant at 127 Sunset Road, Moriarty, New Mexico 87035.
DATED: March 20, 2015

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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