Bank of New York Mellon v. Gleneagles Homeowner Association, Inc.

Filing 56

ORDER granting 53 Motion for Service by Publication.; granting 54 Motion. The deadline to serve Mr. Mendez by publication is extended by 60 days. Signed by Magistrate Judge Nancy J. Koppe on 9/29/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BANK OF NEW YORK MELLON,

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Plaintiff(s),

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v.

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GLENEAGLES HOMEOWNER
ASSOCIATION, INC., et al.,

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Defendant(s).
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Case No. 2:16-cv-00607-APG-NJK
ORDER
(Docket Nos. 53-54)

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Pending before the Court are SFR’s motions for an extension of time to serve Jose Luis Mendez

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and for leave to serve him by publication. Docket Nos. 53-54. The motions are properly resolved

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without a hearing. See Local Rule 78-1. For the reasons discussed below, the motions are GRANTED.

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I.

Motion to Extend Time for Service

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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). The motion establishes sufficient cause to extend the time for

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effectuating service on Mr. Mendez by 60 days.

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II.

Motion for Leave to Serve by Publication

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SFR seeks leave to serve Mr. Mendez by publication. Service by publication implicates a

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defendant’s fundamental due process rights. See, e.g., Mullane v. Central Hanover Bank & Trust Co.,

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339 U.S. 306, 314-15 (1950); Price v. Dunn, 787 P.2d 785, 787 (Nev. 1990). As a result, service by

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publication is generally disfavored. See, e.g., Trustees of the Nev. Resort Assoc.–Int’l Alliance of

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Theatrical Stage Employees & Moving Picture Machine Operators v. Alumifax, Inc., 2013 U.S. Dist.

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Lexis. 106456, *2 (D. Nev. July 29, 2013).

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The Federal Rules of Civil Procedure provide for service pursuant to the law of the state in which

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the district court is located, or in which service is made. See, e.g., Fed. R. Civ. P. 4(e)(1). Pursuant to

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Rule 4 of the Nevada Rules of Civil Procedure, parties are generally required to personally serve

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summons and the complaint upon defendants. Nevada law also permits a party to obtain leave for

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service by publication when the opposing party, inter alia “cannot, after due diligence be found within

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the state, or by concealment seeks to avoid the service of summons.” Nev. R. Civ. P. 4(e)(1). There are

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several factors courts consider to evaluate a party’s due diligence, including the number of attempts

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made to serve the defendant at his residence and other methods of locating defendants, such as

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consulting public directories and family members. See Price, 787 P.2d at 786-87; Abreu v. Gilmer, 985

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P.2d 746, 747 (Nev. 1999); McNair v. Rivera, 874 P.2d 1240, 1241 (Nev. 1994).

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In this case, SFR has attempted to determine the whereabouts of Mr. Mendez through, inter alia,

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public records searches, local and state directories, a national search engine, the Postal Service, and

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motor vehicle records. See Docket No. 53-1. SFR also attempted to reach Mr. Mendez by telephone.

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See id. SFR has also attempted to serve Mr. Mendez at two different residential addresses. See id. The

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Court finds these efforts sufficient to establish diligence, and permits service by publication.

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III.

Conclusion

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Accordingly, the Court GRANTS the motions to extend the deadline to effectuate service and

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for service by publication. The deadline to serve Mr. Mendez by publication is extended by 60 days.

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SFR shall comply with the requirements of Nevada Rule of Civil Procedure 4 and shall:

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(a)

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Serve Mr. Mendez 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, SFR shall file an Affidavit of Publication.

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IT IS SO ORDERED.

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DATED: September 29, 2016

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge
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