Woodbury Law, Ltd. v. Bank of America National Association et al
Filing
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ORDER Granting 30 Ex Parte Motion for Extension of Time to Serve Defendant Andrew S. Laiby by Publication. Signed by Magistrate Judge Nancy J. Koppe on 4/11/16. (Copies have been distributed pursuant to the NEF - MMM)
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Rodney S. Woodbury, Esq.
Nevada Bar No. 7216
Jordan B. Peel, Esq.
Nevada Bar No. 11678
WOODBURY LAW
50 S. Stephanie Street, Suite 201
Henderson, Nevada 89012
Telephone (702) 933-0777
Facsimile (702) 933-0778
rwoodbury@wmb-law.net
jpeel@wmb-law.net
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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WOODBURY LAW
50 S. Stephanie Street, Suite 201
Henderson, Nevada 89012
(702) 933-0777 Fax (702) 933-0778
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WOODBURY LAW, LTD., a Nevada
professional corporation,
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Case No. 2:15-cv-02247
Plaintiff,
vs.
BANK OF AMERICA, NATIONAL
ASSOCIATION, a national banking
association; BANK OF NEW YORK
MELLON CORPORATION, a Delaware
corporation; BAC HOME LOANS
SERVICING, LP, a Texas limited
partnership; THE CERTIFICATEHOLDERS
CWALT, INC. ALTERNATIVE LOAN
TRUST 2005-59 MORTGAGE PASSTHROUGH CERTIFICATES, SERIES
2005-59, an entity; ALTERNATIVE LOAN
TRUST 2005-59 MORTGAGE PASSTHROUGH CERTIFICATES, SERIES
2005-59, an entity; NATIONAL DEFAULT
SERVICING CORPORATION, an Arizona
corporation; SELECT PORTFOLIO
SERVICING, INC., a Utah corporation;
ANDREW S. LAI, an individual; DOES 1100; ROE ENTITIES 1-100.
EX PARTE APPLICATION
AND
PROPOSED ORDER
FOR EXTENSION OF TIME TO SERVE
DEFENDANT ANDREW S. LAI BY
PUBLICATION PURSUANT TO
FRCP 4(m) AND NRCP 4(e)(1)
(First Request)
Defendants.
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AND ALL RELATED MATTERS
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Plaintiff WOODBURY LAW, LTD. (“Plaintiff”), by and through its undersigned attorneys,
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hereby submits this Ex Parte Application and Proposed Order for Extension of Time to Serve
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Defendant Andrew S. Lai by Publication (this “Application”) pursuant to Rule 4(m) of the Federal
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Rules of Civil Procedure (“FRCP”) and Rule 4(e)(1) of the Nevada Rules of Civil Procedure
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(“NRCP”). This Application is made and based upon the pleadings and papers on file herein, the
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points and authorities hereinafter set forth, the attached affidavit of counsel, and any argument that
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the Court may entertain should a hearing be required. This Application is being submitted ex parte
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without stipulation by Defendant ANDREW S. LAI (“LAI”) because Plaintiff, despite diligent,
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good faith efforts demonstrated in the Affidavit of Rodney S. Woodbury, Esq. attached hereto as
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Exhibit 1, has been unable to locate LAI.
WOODBURY LAW
50 S. Stephanie Street, Suite 201
Henderson, Nevada 89012
(702) 933-0777 Fax (702) 933-0778
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I.
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POINTS AND AUTHORITIES
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A.
Statement of Facts.
The following facts are supported by the Affidavit of Rodney S. Woodbury, Esq. attached
hereto as Exhibit 1.
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Plaintiff (formerly known as Woodbury, Morris & Brown) provided extensive legal
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services in various capacities to Defendant LAI over several years from approximately 2004 to
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2009. In or about May of 2009, Defendant LAI failed to respond to or otherwise communicate
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with Plaintiff for several months in spite of repeated attempts to contact him and regular
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delinquency notices and demands sent to his attention.
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Neither Plaintiff nor the undersigned knows the whereabouts of Defendant LAI and upon
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information and belief, Defendant LAI has fled the state and possibly also the country and cannot,
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therefore, after due diligence be found within the state. LAI has either departed from the state or
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has concealed himself to avoid service of process.
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Plaintiff obtained a judgment against Defendant LAI in 2009 for unpaid legal fees and is
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currently the owner of Defendant LAI’s last known address located at 1999 Alcova Ridge Drive,
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Las Vegas, Nevada 89135 (the “Property”). Plaintiff executed on the judgment and obtained title
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to the Property from Defendant LAI via sheriff’s sale.
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Since acquiring ownership of the Property in January 2010, Plaintiff has continuously been
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regularly visit the Property and report back to Plaintiff and the undersigned. Neither the property
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manager nor the maintenance crews have ever seen nor heard from LAI since Plaintiff acquired
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ownership, nor have neighbors in the vicinity of the Property with whom they have had periodic
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conversations. Red Rock Country Club Homeowners Association (the “HOA”), the association
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that manages the guard-gated community in which the Property is located, also carefully tracks
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occupants of and visitors to the Property and has never reported seeing nor hearing from LAI since
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Plaintiff acquired ownership. The undersigned also periodically visits and inspects the Property and
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has never seen nor heard from LAI since Plaintiff acquired ownership. LAI also has not paid any
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WOODBURY LAW
in possession of the Property and has engaged a property manager and maintenance crews who
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50 S. Stephanie Street, Suite 201
Henderson, Nevada 89012
(702) 933-0777 Fax (702) 933-0778
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utilities charges, HOA assessments, or any other Property-related expenses since abandoning the
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Property in 2009. Furthermore, LAI has never responded to numerous summonses and other legal
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notices posted on the Property since 2009. Therefore, Plaintiff and the undersigned are 100%
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certain that Defendant LAI no longer resides at the Property.
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On or about May 21, 2015, two months prior to filing the Complaint in the instant action,
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online searches were performed by the staff of Plaintiff’s counsel on whitepages.com and
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switchboard.com. Those searches revealed a property address for an Andrew S. Lai in Houston,
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Texas. On May 22, 2015, counsel’s staff requested the assistance of Professional Civil Process of
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Houston, Texas to attempt service on LAI in a prior case (U.S. District Court Case No. 2:15-cv-
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00603-JCM-GWF). On June 17, 2015, personal service was effected on that Andrew S. Lai at his
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place of employment located at 5800 Ranchester, Ste. 200, Houston, Texas 77036. On or about July
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2, 2015, Plaintiff’s counsel received a letter from Attorney Craig Corsini of Lai, Corsini & Lapus,
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LLC in Houston, Texas, stating that the Andrew S. Lai served on June 17, 2015 was the wrong
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Andrew S. Lai and that that Mr. Lai (whose full name is Andrew Saintan Lai) has no connection
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whatsoever to any of the facts or events in the complaint.
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Since that time, additional online searches have again been performed by counsel’s staff
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on whitepages.com and switchboard.com. However, none of these has been successful in revealing
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any new address information for Defendant LAI, instead only producing the same erroneous
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address in Houston, Texas previously discovered in May 2015.
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The staff of Plaintiff’s counsel has also performed extensive searches of Clark County
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Assessor’s and Clark County Recorder’s records and reviewed page after page of real property
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records associated with the last name Lai. However, none of those searches has successfully turned
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up a current address for Defendant LAI.
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Additionally, counsel’s staff has performed drivers license and vehicle registration searches
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with the Nevada Department of Motor Vehicles, none of which has revealed any drivers license
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records or vehicle registrations for Defendant LAI.
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Plaintiff and the undersigned have also attempted to communicate with Defendant LAI’s
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son Austin Lai and his former spouse Yachin Shih in an effort to obtain LAI’s current contact
WOODBURY LAW
50 S. Stephanie Street, Suite 201
Henderson, Nevada 89012
(702) 933-0777 Fax (702) 933-0778
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information. However, neither of them has responded.
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LAI also has numerous unsatisfied liens and judgments of record against him in Clark
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County, Nevada, including, without limitation a judgment of over $2.5 million in favor of Bank
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of George, a judgment of over $6 million in favor of the FDIC as receiver for Community Bank
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of Nevada, a judgment of over $7 million in favor of FNBN Properties II, LLC, a judgment of
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almost $150,000 in favor of the Ned Gershenson Family Trust and the Susan Karahalis Trust, a
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judgment of over $14 million in favor of MB REO-NV Industrial, LLC, and a judgment of almost
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$800,000 in favor of the United States of America, These liens and judgments, totaling over $30
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million in principal alone, further evidence the likelihood that Defendant LAI has fled the state and
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possibly the country and is in any case evading all contact and service of legal process.
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As the foregoing demonstrates, Plaintiff has diligently attempted to locate and serve
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Defendant LAI without success. Plaintiff submits that it has met the requisite due diligence
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requirement under FRCP 4(m) and that good cause therefore exists for this Court to extend the time
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for Plaintiff to serve Defendant LAI via publication.
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B.
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It Is Within the Sound Discretion of this Court to Grant Plaintiff Additional Time to
Effect Service on LAI, and Good Cause Exists for Doing So.
In pertinent part, FRCP 4(m) provides:
If a defendant is not served within 120 days after the complaint if filed, the
court–on motion or on it own after notice to the plaintiff– must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court
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must extend the time for service for an appropriate period. . . .
(emphasis added).
for service where reasonable but unsuccessful efforts have been made. As the District Court of
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Nevada has noted, “Congress intended that a plaintiff who had made reasonable efforts to effect
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service would be permitted additional time . . . .” Arroyo v. Wheat, , 102 F.R.D. 516, 518 (D. Nev.
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1984) (construing former Rule 4(j) and finding that “good cause” exists for extension of time where
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the plaintiff’s service efforts have been bona fide, and there was no dilatory or willful delay)
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(emphasis added). The Arroyo court also noted that “[i]t was not intended that [former] Rule 4(j)
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WOODBURY LAW
Federal courts have construed the service rules liberally to permit plaintiffs additional time
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50 S. Stephanie Street, Suite 201
Henderson, Nevada 89012
(702) 933-0777 Fax (702) 933-0778
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would be enforced harshly; that is why liberal extensions of time are permitted under Rule 6(b).”
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Id. (emphasis added).
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Nevada’s federal court has also determined that
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The Court “has broad discretion to extend time for service under Rule 4(m).” In
considering whether to grant an extension, “a district court may consider factors
‘like statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit,
and eventual service.’”
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Carr v. Int’l Game Technology, 770 F.Supp.2d 1080 (D. Nev. 2011) (concluding that the plaintiffs
should be granted an extension of time to effect service where the statute of limitation had not yet
run and there would be no prejudice to the defendants) (internal citations omitted; emphasis added).
See also Lane v. Wells Fargo Bank, N.A., 2012 WL 4792914, at *3 (D. Nev. 2012).
Plaintiff filed its original Complaint in state court on August 14, 2015, and its First
Amended Complaint (ECF No. 4) after the case was removed to this Court on December 9, 2015.
Plaintiff is suing Defendant LAI to obtain Quite Title to the Property. Despite Plaintiff’s best and
numerous attempts to locate and serve Defendant LAI, Plaintiff has been unable to do so within
the 120-day period prescribed by FRCP 4(m).
Nevertheless, as the Statement of Facts in Part I.A supra and the Affidavit of Rodney S..
Woodbury, Esq. attached hereto as Exhibit 1 amply demonstrate, good cause exists to grant
Plaintiff an extension to effect proper service on LAI by publication. Plaintiff has made extensive
efforts to locate LAI since 2009 when he abandoned the Property. Plaintiff sent regular
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a judgment against LAI in 2009 without LAI’s opposition or appearance, then executed on the
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judgment and obtained title to the Property in January 2010, again without LAI’s opposition.
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Neither Plaintiff nor its property manager, maintenance crews, neighbors, or the HOA has ever
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seen or heard from LAI since Plaintiff acquired ownership, despite Plaintiff’s continuous
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possession of the Property and numerous site visits, inspection, and inquiries. LAI has not paid any
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Property-related expenses nor ever responded to numerous summonses and other legal notices
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posted on the Property since 2009.
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whitepages.com and switchboard.com have been unfruitful, as has its searches of the Clark County
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WOODBURY LAW
delinquency notices and demands to LAI’s attention in 2009 without response. Plaintiff obtained
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50 S. Stephanie Street, Suite 201
Henderson, Nevada 89012
(702) 933-0777 Fax (702) 933-0778
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Assessor’s records, the Clark County Recorder’s records, and DMV’s drivers license and vehicle
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registration records. Plaintiff’s attempts to locate LAI through his son Austin Lai and his former
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spouse Yachin Shih have also been unsuccessful. Upon information and belief, LAI has either fled
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the state and possibly the country or has concealed himself to evade service of process, a fact that
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is bolstered by the over $30 million in liens and judgments of record against LAI in Clark County,
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Nevada alone.
Plaintiff’s numerous online searches for LAI on
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Plaintiff respectfully submits that the foregoing constitutes more than reasonable efforts to
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locate and serve LAI, without any dilatory or willful delay, sufficient to show good cause for an
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extension under FRCP 4(m). See Arroyo, 102 F.R.D. at 518. Moreover, the statute of limitations
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has not yet run and there will therefore be no prejudice to LAI if an extension is granted. See Carr,
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770 F.Supp.2d at 1080; Lane, 2012 WL 4792914, at *3.
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C.
This Court Should Grant Plaintiff’s Request to Serve LAI by Publication.
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FRCP 4(e)(1) provides that an individual like LAI “may be served within a judicial district
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of the United States . . . by following state law for serving a summons in an action brought in courts
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of general jurisdiction within the state where the district court is located or where service is made
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. . . .” NRCP 4(e)(1)(i) in turn states, in pertinent part:
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In addition to methods of personal service, when the person on whom service is to
be made resides out of the state, or has departed from the state, or cannot, after due
diligence be found within the state, or conceals himself to avoid the service of
summons, and the fact shall appear, by affidavit, to the satisfaction of the court or
judge thereof, . . . that he is a necessary or proper party to the action, such court or
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judge may grant an order that the service be made by the publication of summons.
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Thus, this Court has the authority to order service of Defendant LAI by publication.
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As demonstrated hereinabove, Defendant LAI has not, despite Plaintiff’s due diligence,
been found in the State of Nevada and, upon information and belief, resides out of the state or has
departed from the state or is concealing himself to avoid service. All attempts to locate and serve
LAI have been fruitless, very costly, and time consuming. Plaintiff has shown extensive due
diligence in its numerous attempts to locate and serve Defendant LAI. And LAI is a necessary and
proper party to Plaintiff’s Quiet Title action since he was the former owner of the Property and may
still claim an estate or interest therein.
WOODBURY LAW
50 S. Stephanie Street, Suite 201
Henderson, Nevada 89012
(702) 933-0777 Fax (702) 933-0778
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Plaintiff has made every reasonable effort required by FRCP 4 and NRCP 4 to personally
serve Defendant LAI. Accordingly, Plaintiff respectfully requests an extension of time for at least
eight (8) additional weeks from the date hereof to serve Defendant LAI by publication pursuant to
NRCP 4(e)(1), since publication must be effected over a period of at least four (4) consecutive
weeks.
///
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///
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II.
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CONCLUSION AND ORDER
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For the foregoing reasons, Plaintiff respectfully requests that this Court grant this
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Application by:
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1.
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Extending the time for Plaintiff to serve Defendant LAI for a period of eight (8)
weeks from the date of entry of this Order;
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Granting Plaintiff leave to serve Defendant LAI by publication of summons in
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accordance with NRCP 4(e)(1), said publication to be made in the Nevada Legal News for a period
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of four (4) weeks, and at least once a week during said time.
WOODBURY LAW
50 S. Stephanie Street, Suite 201
Henderson, Nevada 89012
(702) 933-0777 Fax (702) 933-0778
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DATED this 7th day of April, 2016.
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WOODBURY LAW
/s/ Rodney S. Woodbury
_________________________________
Rodney S. Woodbury, Esq.
Nevada Bar No. 7216
Jordan B. Peel, Esq.
Nevada Bar No. 11678
50 S. Stephanie Street, Suite 201
Henderson, NV 89012
Attorneys for Plaintiff
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IT IS SO ORDERED.
Dated this 11th
day of April
, 2016.
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UNITED STATE DISTRICT JUDGE
NANCY J. KOPPE
UNITED STATES MAGISTRATE JUDGE
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