Bank of America, N.A. v. Ridgeview Homeowners Association, Inc., et al

Filing 29

ORDER that 27 Motion for Extension of Time to Serve and for Service by Publication is GRANTED in part and DENIED in part. Signed by Magistrate Judge Nancy J. Koppe on 2/13/17. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 14 BANK OF AMERICA, N.A., ) ) Plaintiff(s), ) ) v. ) ) RIDGEVIEW HOMEOWNERS ASSOCIATION, ) et al., ) ) Defendant(s). ) ) Case No. 2:16-cv-02211-JCM-NJK ORDER (Docket No. 27) 15 Pending before the Court is Defendant A Scimitar, LLC’s motion for extension of time to 16 serve the summons and third-party complaint on third-party defendants Alex and Sonya Diaz, and 17 for leave to serve by publication. Docket No. 27. The Court finds this motion properly resolved 18 without a hearing. See Local Rule 78-1. For the reasons discussed below, the motion is GRANTED 19 in part and DENIED in part. 20 I. Motion to Extend Time for Service 21 Where good cause is shown, the time for serving the complaint is extended for an appropriate 22 period. See Fed. R. Civ. P. 4(m). The motion establishes sufficient cause to extend the time for 23 effectuating service by 60 days. 24 II. Motion for Leave to Serve by Publication 25 Plaintiff seeks leave to serve the Diazes by publication. Service by publication implicates 26 a defendant’s fundamental due process rights. See, e.g., Mullane v. Central Hanover Bank & Trust 27 Co., 339 U.S. 306, 314-15 (1950); Price v. Dunn, 787 P.2d 785, 787 (Nev. 1990). As a result, 28 service by publication is generally disfavored. See, e.g., Trustees of the Nev. Resort Assoc.–Int’l 1 Alliance of Theatrical Stage Employees & Moving Picture Machine Operators v. Alumifax, Inc., 2 2013 U.S. Dist. Lexis. 106456, *2 (D. Nev. July 29, 2013). 3 The Federal Rules of Civil Procedure provide for service pursuant to the law of the state in 4 which the district court is located, or in which service is made. See, e.g., Fed. R. Civ. P. 4(e)(1). 5 Pursuant to Rule 4 of the Nevada Rules of Civil Procedure, parties are generally required to 6 personally serve summons and the complaint upon defendants. Nevada law also permits a party to 7 obtain leave for service by publication when the opposing party, inter alia “cannot, after due 8 diligence be found within the state, or by concealment seeks to avoid the service of summons.” Nev. 9 R. Civ. P. 4(e)(1). There are several factors courts consider to evaluate a party’s due diligence, 10 including the number of attempts made to serve the defendant at his residence and other methods of 11 locating defendants, such as consulting public directories and family members. See Price, 787 P.2d 12 at 786-87; Abreu v. Gilmer, 985 P.2d 746, 747 (Nev. 1999); McNair v. Rivera, 874 P.2d 1240, 1241 13 (Nev. 1994). 14 In this case, Defendant’s process server has made numerous efforts to locate the Diazes, and 15 has only discovered one possible address. See Docket No. 27-1. However, it appears that Defendant 16 has not even attempted to serve the Diazes at that address due to its process server’s belief that the 17 address is “chronologically incongruent.” See, e.g., id. at 3. Additionally, Defendant submits that 18 its process server submitted inquiries to the United States Postmaster regarding the Diazes’ address, 19 but has not yet received a response. See, e.g., id. at 8. However, Defendant does not state when 20 those inquiries were submitted. See id. Given the disfavored nature of service by publication and 21 the due process rights involved, the Court finds the efforts identified insufficient to show that service 22 by publication should be allowed at this time. 23 III. Conclusion 24 For the reasons discussed above, the Court GRANTS in part and DENIES in part 25 Defendant’s motion. Docket No. 27. The Court GRANTS the motion to the extent that it seeks an 26 extension of the deadline to serve third-party defendants Alex and Sonya Diaz. The deadline to serve 27 28 1 the Diazes is extended by 60 days, until March 13, 2017.1 The Court DENIES the motion without 2 prejudice to the extent that it asks the Court to allow service by publication. 3 IT IS SO ORDERED. 4 DATED: February 13, 2017 5 6 ______________________________________ NANCY J. KOPPE United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The Court reminds Defendant that Federal Rule of Civil Procedure 4(m) was amended in 2015. Thus, the initial deadline for service expired on January 12, 2017, not February 11, 2017. See Fed. R. Civ. P. 4(m); Docket No. 12.

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