Deutsche Bank National Trust Company v. Seven Hills Master Community Association et al

Filing 43

ORDER. The Court GRANTS the Emergency Motion for Service by Publication 41 . The Court GRANTS the Emergency Motion to Extend Time for Service 40 . The Court extends the Rule 4(m) deadline to 1/29/16. Counter-claimant SFR shall comply with the requirements of N.R.C.P. 4 and shall: (a) Serve Cross-claimant Holcomb by publication in a newspaper of general circulation in the State of Nevada on a weekly basis for a period of four weeks. (c) After publication is complete, Counter-claimant SFR s hall file an Affidavit of Publication from the Nevada newspaper.Further, for good cause shown, Cross-claimant Holcombs Emergency Motion to Amend Caption 39 of its counterclaim from its erroneous spelling of "Valerie Holcomb" to the correct spelling of "Valorie Holcomb" is hereby GRANTED. The Court clerk shall alter the caption accordingly. Signed by Magistrate Judge Nancy J. Koppe on 12/7/15. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DEUTSCHE BANK NATIONAL TRUST
COMPANY,

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Plaintiff(s),

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vs.

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SEVEN HILLS MATTER COMMUNITY
ASSOCIATION, et al.,

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Defendant(s).

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Case No. 2:15-cv-01373-APG-NJK
ORDER
(Docket Nos. 39, 40, 41)

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Pending before the Court are Counter-claimant SFR Investments Pool 1, LLC’s (“Counter18
claimant SFR”) motion to amend the case caption (Docket No. 39), motion for an extension of time to
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serve Cross-claimant Valorie Holcomb (Docket No. 40), and motion for leave to serve her by
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publication (Docket No. 41). The Court finds the motions properly resolved without oral argument.
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See Local Rule 78-2. For the reasons discussed below, the motion to amend (Docket No. 39) is hereby
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GRANTED, the motion for leave to serve by publication (Docket No. 40) is GRANTED, and the
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motion to extend (Docket No. 41) is GRANTED.
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Where good cause is shown, the time for serving the complaint is extended for an appropriate
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period. See Fed. R. Civ. P. 4(m). Service by publication implicates a defendant’s fundamental due
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process rights. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950);
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Price v. Dunn, 787 P.2d 785, 787 (Nev. 1990). As a result, service by publication is generally
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disfavored. See, e.g., Trustees of the Nev. Resort Assoc.–Int’l Alliance of Theatrical Stage Employees

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& Moving Picture Machine Operators v. Alumifax, Inc., 2013 U.S. Dist. Lexis. 106456, *2 (D. Nev.

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July 29, 2013).

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Federal Rule of Civil Procedure 4(e)(1) provides for service “pursuant to the law of the state in

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which the district court is located, or in which service is effected.” Under Nevada Rule of Civil

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Procedure (“NRCP”) 4, parties are required to personally serve summons and the complaint upon

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defendants. When personal service proves impossible, however, NRCP 4(e)(1)(i) provides that a party

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may file a motion for service by publication when the opposing party “resides out of the state, or has

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departed from the state, or cannot, after due diligence be found within the state, or by concealment seeks

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to avoid the service of summons.” When service of the summons is made by publication, the summons

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shall, in addition to any special statutory requirements, also contain a brief statement of the object of

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the action. NRCP 4(b).

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A party moving for service by publication must seek leave of court by filing an affidavit

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demonstrating she diligently attempted to serve the defendant. There are several factors courts consider

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to evaluate a party’s due diligence, including the number of attempts made to serve the defendant at his

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

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members. See Price, 787 P.2d at 786-87; Abreu v. Gilmer, 985 P.2d 746, 747 (Nev. 1999); McNair v.

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Rivera, 874 P.2d 1240, 1241 (Nev. 1994).

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Here, the Court finds that Counter-claimant SFR has diligently attempted to locate Cross-

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claimant Holcomb to enable service. See Docket No. 41-1 (affidavit detailing service attempts).

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Counter-claimant SFR has made inquiries into local phone records, voter registration records, property

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records, motor vehicle records, and national databases. Id., at 2, 4. Many of these data suggest

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Cross-claimant Holcomb’s address is 4797 Ravello Dr., Sparks, NV 89436. Counter-claimant SFR

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attempted to serve Cross-claimant Holcomb at this address six times. Id., at 3. The Court will therefore

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permit Counter-claimant SFR to serve Cross-claimant Holcomb by publication. Because service by

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publication takes several weeks, the Court will also extend the service deadline.

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Accordingly, the Court GRANTS the motion for service by publication. Docket No. 41. The

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Court GRANTS the request for extension of the Rule 4(m) deadline. Docket No. 40. The Court

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extends the Rule 4(m) deadline to January 29, 2016. Counter-claimant SFR shall comply with the

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requirements of Nevada Rule of Civil Procedure 4 and shall:

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(a)

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Serve Cross-claimant Holcomb by publication in a newspaper of general
circulation in the State of Nevada on a weekly basis for a period of four weeks.

(c)

After publication is complete, Counter-claimant SFR shall file an Affidavit of
Publication from the Nevada newspaper.

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Further, for good cause shown, Cross-claimant Holcomb’s motion to amend the caption of its

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counter claim from its erroneous spelling of “Valerie Holcomb” to the correct spelling of “Valorie

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Holcomb” is hereby GRANTED. Docket No. 39. The Court clerk shall alter the caption accordingly.

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IT IS SO ORDERED.

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DATED: December 7, 2015

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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