Evans v. Board of Prison Commissioners et al

Filing 14

ORDER Granting 13 Motion to Serve By Publication. Signed by Magistrate Judge Nancy J. Koppe on 1/5/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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LAWRENCE D. EVANS,
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Plaintiff,
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vs.
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BOARD OF PRISON COMMISSIONERS, et al.,
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Defendants.
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Case No. 2:15-cv-01885-APG-NJK
ORDER GRANTING MOTION TO
SERVE BY PUBLICATION
(Docket No. 13)

Pending before the Court is Plaintiff’s motion for leave to serve Defendant Arthur Lindsey by

17 publication. Docket No. 13. The Court finds the motion properly resolved without oral argument. See
18 Local Rule 78-2. For the reasons discussed below, the motion is hereby GRANTED.
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Service by publication implicates a defendant’s fundamental due process rights. See, e.g.,

20 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950); Price v. Dunn, 787 P.2d
21 785, 787 (Nev. 1990). As a result, service by publication is generally disfavored. See, e.g., Trustees of
22 the Nev. Resort Assoc.–Int’l Alliance of Theatrical Stage Employees & Moving Picture Machine
23 Operators v. Alumifax, Inc., 2013 U.S. Dist. Lexis. 106456, *2 (D. Nev. 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

25 which the district court is located, or in which service is effected.” Under Nevada Rule of Civil
26 Procedure (“NRCP”) 4, parties are required to personally serve summons and the complaint upon
27 defendants. When personal service proves impossible, however, NRCP 4(e)(1)(i) provides that a party
28 may file a motion for service by publication when the opposing party “resides out of the state, or has

1 departed from the state, or cannot, after due diligence be found within the state, or by concealment seeks
2 to avoid the service of summons.” When service of the summons is made by publication, the summons
3 shall, in addition to any special statutory requirements, also contain a brief statement of the object of the
4 action. N.R.C.P. 4(b).
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A party moving for service by publication must seek leave of court by filing an affidavit

6 demonstrating he diligently attempted to serve the defendant. There are several factors courts consider
7 to evaluate a party’s due diligence, including the number of attempts made to serve the defendant at his
8 residence and other methods of locating defendants, such as consulting public directories and family
9 members. See Price, 787 P.2d at 786-87; Abreu v. Gilmer, 985 P.2d 746, 747 (Nev. 1999); McNair v.
10 Rivera, 874 P.2d 1240, 1241 (Nev. 1994).
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Here, the Court finds that Plaintiff has diligently attempted to locate Defendant to enable service.

12 See, e.g., Docket No. 13 at 2, 6-9. For example, Plaintiff hired a process server who has attempted to
13 serve Defendant on numerous occasions. The process server attempted to serve Defendant at work,
14 conducted checks to determine his address, and attempted to serve him at more than one address several
15 times. Moreover, the process server spoke with Defendant’s sister, who would not reveal his
16 whereabouts, but took a message for him. Defendant telephoned the process server, and stated that he
17 will not accept service. The Court will therefore permit Plaintiff to serve Defendant by publication.
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Accordingly, the Court GRANTS the motion for service by publication. Plaintiff shall comply

19 with the requirements of Nevada Rule of Civil Procedure 4 and shall:
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(a)

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Serve Defendant Arthur Lindssey by publication in a newspaper of general
circulation in the State of Nevada on a weekly basis for a period of four weeks.

(b)

After publication is complete, Plaintiff shall file an Affidavit of Publication from
the Nevada newspaper.

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IT IS SO ORDERED.

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DATED: January 5, 2016.

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NANCY J. KOPPE
United States Magistrate Judge
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