Christiana Trust v. 9796 Mount Cupertino Trust, et al

Filing 13

ORDER re 12 Motion for Extension and Service by Publication. the Court hereby GRANTS Plaintiff's motion for extension of the 4(m) deadline. The deadline to effectuate service on Defendants is extended to August 3, 2016. Plaintiff's motion for service by publication is DENIED. Signed by Magistrate Judge Nancy J. Koppe on 3/9/16. (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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CHRISTIANA TRUST,
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Plaintiff(s),
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vs.
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9796 MOUNT CUPERTINO TRUST, et al.,
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Defendant(s).

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Case No. 2:15-cv-02295-RFB-NJK
ORDER
(Docket No. 12)

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Pending before the Court is Plaintiff’s motion for an extension of time to serve Defendants and
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for leave to serve Defendants by publication. Docket No. 12. The Court finds the motion properly
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resolved without oral argument. See Local Rule 78-2. For the reasons stated below, the motion for is
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GRANTED in part and DENIED in part.
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I.

MOTION FOR EXTENSION OF TIME

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The Court must extend the 120-day Rule 4(m) deadline if the serving party shows good cause
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for failure to serve within 120 days. Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). If
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the serving party does not show good cause, the Court has discretion to extend time for service or to
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dismiss the complaint without prejudice. In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). The Court’s
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discretion to extend time for service or to dismiss without prejudice for failure to timely serve is broad.
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Id.
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Here, Plaintiff has shown good cause to warrant an extension of the Rule 4(m) deadline. The

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Court therefore GRANTS Plaintiff a 120-day extension of time to effectuate service on Defendants and

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extends the Rule 4(m) deadline to August 3, 2016.

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II.

MOTION FOR SERVICE BY PUBLICATION

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Service by publication implicates a defendant’s fundamental due process rights. See, e.g.,

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Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950); Price v. Dunn, 787 P.2d

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785, 787 (Nev. 1990). As a result, service by publication is generally disfavored. See, e.g., Trustees

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of the Nev. Resort Assoc.–Int’l Alliance of Theatrical Stage Employees & Moving Picture Machine

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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

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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 it 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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In this case, Plaintiff has failed to establish the due diligence required to warrant service by

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publication. Attached to Plaintiff’s motion are four affidavits of due diligence. Docket No. 15 at 5-13.

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Two of those affidavits, however, are duplicates. See id. Therefore, Plaintiff only offers evidence

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indicating that it attempted service on Defendants twice. Further, Plaintiff fails to detail the methods

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that it used in attempting to locate Defendants.

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III.

CONCLUSION

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Accordingly, the Court hereby GRANTS Plaintiff’s motion for extension of the 4(m) deadline.

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The deadline to effectuate service on Defendants is extended to August 3, 2016. Plaintiff’s motion for

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service by publication is DENIED.

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IT IS SO ORDERED.

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DATED: March 9, 2016

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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