United States of America v. Shaw et al

Filing 21

ORDER. 18 Motion for Service by Publication is hereby GRANTED and the motion to extend is hereby GRANTED in part. Signed by Magistrate Judge Nancy J. Koppe on 4/27/16. (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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UNITED STATES OF AMERICA,
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Plaintiff(s),
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vs.
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ROBERT C. SHAW, et al.,
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Defendant(s).
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Case No. 2:16-cv-00220-KJD-NJK
ORDER
(Docket No. 18)

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Pending before the Court is Plaintiff’s motion for an extension of time to serve Defendants

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Richard C. Shaw, Rose O. Shaw, and Saint Andrews Ivy, B.T. (collectively, “Defendants”), and for

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leave to serve them by publication. Docket No. 18. The Court finds the motion properly resolved

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without a hearing. See Local Rule 78-2. For the reasons discussed below, the motion to serve by

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publication is hereby GRANTED and the motion to extend is hereby GRANTED in part.

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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 F.R.C.P. 4(m). Service by publication implicates a defendant’s fundamental due process

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rights. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950); Price

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v. Dunn, 787 P.2d 785, 787 (Nev. 1990). As a result, service by publication is generally disfavored.

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See, e.g., Trustees of the Nev. Resort Assoc.–Int’l Alliance of Theatrical Stage Employees & Moving

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Picture Machine 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 the

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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 Plaintiff has diligently attempted to locate Defendants to enable

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service. See, e.g., Docket No. 19. For example, Plaintiff has attempted to discern Defendants’ location

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through various methods, including searching public records regarding corporations and searching

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records to identify the owner of a vehicle found at a location linked to Defendants. Plaintiff has

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attempted to serve Defendants in both Nevada and Florida through the use of process servers at

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addresses related to Defendants, as well as mailing them process server waivers. Plaintiff’s process

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servers have also attempted to ascertain Defendants’ whereabouts from persons at these locations, but

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have generally been met with evasive responses. The Court will therefore permit Plaintiff to serve

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Defendants by publication. Because service by publication takes several weeks, the Court will also

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extend the service deadline.1

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Plaintiff also requests that the Court allow it to serve notice of the complaint, rather than the
complete complaint. See Docket No. 18 at 8. No legal authority or meaningful discussion is provided on
that issue, and the Court declines to rule on it. See, e.g., Kor Media Group, LLC v. Green, 294 F.R.D. 579,
582 n.3 (D. Nev. 2013).
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Accordingly, the Court GRANTS the motion for service by publication. The deadline to serve

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Defendant by publication is also extended by 60 days. Plaintiff shall comply with the requirements of

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Nevada Rule of Civil Procedure 4 and shall:

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(a)

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State of Nevada on a weekly basis for a period of four weeks.
(b)

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Serve Defendants by publication in a newspaper of general circulation in the

Serve Defendants by publication in a newspaper of general circulation in the
State of Florida on a weekly basis for a period of four weeks.

(c)

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

For the reasons discussed above, the pending motion for service by publication is hereby
GRANTED and the motion to extend is hereby GRANTED in part.

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IT IS SO ORDERED.

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DATED: April 27, 2016

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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