The Bank Of New York Mellon v. Southern Highlands Community Association, et al

Filing 41

ORDER granting 34 Motion for Service by Publication.; granting 35 Motion to Enlarge Time to Serve Summons. FURTHER ORDERED that the summons in this action must be served by publication in a newspaper, published in the state of Nevada, for a period of four weeks and at least once a week during that time. IT IS FURTHER ORDERED that the deadline to effect service of process is extended up to and including 5/5/2017. Signed by Magistrate Judge Cam Ferenbach on 3/1/2017. (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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THE BANK OF NEW YORK MELLON F/K/A
THE BANK OF NEW YORK, AS TRUSTEE
FOR THE CERTIFICATEHOLDERS CWALT,
INC., et al.,
Plaintiffs,

2:16-cv-01177-JCM-VCF
ORDER GRANTING ENLARGEMENT OF
TIME TO SERVE AND SERVICE BY
PUBLICATION

vs.
SALMA KHAN, et al.,
Defendants.

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Before the Court are SFR’s Motion to Serve Cross-Defendant Salma Khan by Publication and
Motion to Enlarge Time to Serve Summons and Cross-Claim (ECF Nos. 34 and 35).
SFR asks this court to permit service of the Summons and Complaint against Khan by publication.
Id. Plaintiff also seeks to extend the time in which to effectuate service under Federal Rule of Civil
Procedure 4(m). Id. No opposition has been filed to the Motion to Serve Salma Khan by Publication and
Motion to Enlarge Time to Serve Summons and Cross-Claim (ECF Nos. 34 and 35).
Service By Publication
Pursuant to Fed. R. Civ. P. 4(e)(1), “an individual – other than a minor, an incompetent person, or
a person whose waiver had been filed – may be served in a judicial district of the United States by
following state law for serving a summons in an action brought in courts of general jurisdiction in the state
where the district court is located or where service is made.” Under Rule 4(e)(1) of the Nevada Rules of
Civil Procedure, “when the person on whom service is to be made resides out of the state, or has departed

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from the state, or cannot, after due diligence, be found within the state, or by concealment seeks to avoid

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the service of summons, and the fact shall appear, by affidavit, to the satisfaction of the court or judge

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thereof, and it shall appear, either by affidavit or by a verified complaint on file, that a cause of action

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exists against the defendant in respect to whom the service is to be made, and that the defendant is a

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necessary or proper party to the action, such court or judge may grant an order that the service be made

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by the publication of summons.”

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SFR asserts that after diligent effort, it is unable to serve Khan within the states of Nevada and

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California. (ECF No. 34 at 4). In support of this assertion, SFR provided the court with an affidavit of

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attempted service. (ECF No. 34-1 at 2). The last known addresses for Khan are 7849 Meandering Light

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Ave., Las Vegas, NV 89131; 8521 Copper Falls Dr., Las Vegas, Nevada 89129; 11622 Harrington St.,

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Bakersfield, CA 93311; 10001 Venice Blvd. Apt. 402, Los Angeles, CA 90034. Id. Service at these

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addresses were unsuccessful. Id.

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The court finds that pursuant to Fed. R. Civ. P. 4(e)(1) and Nev. R. Civ. P. 4(e)(1), permitting

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service by publication of the Summons and Complaint on Khan is warranted. Pursuant to Rule 4(e)(1)(iii),

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the publication must be made in a newspaper, published in the State of Nevada, for a period of 4 weeks,

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and at least once a week during said time. Nev. R. Civ. P. 4(e)(1)(iii).

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Extension For Service

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Fed. R. Civ. P. 4(m) requires a defendant to be served within 90 days after the complaint is filed.

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If “the plaintiff shows good cause for the failure [to serve a defendant within that time-frame], the court

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must extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m).

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Plaintiff must effectuate service on Khan by May 5, 2016. Fed. R. Civ. P. 4(m). SFR asserts that

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an additional 60 days is required to effect service by publication, and asks this court to extend the 4(m)

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deadline. Id.

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Given that SFR has demonstrated “good cause” for its failure to effectuate service and has provided

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support for its request for an extension, the court will extend the 4(m) deadline until May 5, 2017. See

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Fed. R. Civ. P. 4(m).

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Accordingly, and for good cause shown,

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IT IS HEREBY ORDERED that SFR’s Motion to Serve Cross-Defendant Salma Khan by

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Publication and Motion to Enlarge Time to Serve Summons and Cross-Claim (ECF Nos. 34 and 35) are

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GRANTED.

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IT IS FURTHER ORDERED that SFR is permitted to serve Khan by publication. A copy of the

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Summons and Complaint must be mailed to Khan at her last known addresses by certified U.S. Mail,

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return receipt requested.

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IT IS FURTHER ORDERED that, pursuant to Fed. R. Civ. P. 4(e)(1) and Nev. R. Civ. P. 4(e)(1)(i)

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and (iii), the Summons in this action must be served by publication in a newspaper, published in the state

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of Nevada, for a period of four weeks and at least once a week during that time.

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IT IS FURTHER ORDERED that the deadline to effect service of process is extended up to and
including May 5, 2017.
DATED this 1st day of March, 2017.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE