Bank of America, N.A. v. Bacara Ridge Association et al

Filing 43

ORDER. IT IS ORDERED that 37 the Court GRANTS Defendant's motion to extend time to serve Cross-Defendant Smith. The deadline to serve Cross-Defendant Smith ishereby EXTENDED to 5/19/17. The Court further GRANTS 36 Defendant's motion to serve Cross-Defendant Smith by publication. Signed by Magistrate Judge Nancy J. Koppe on 4/5/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BANK OF AMERICA, N.A.,

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Plaintiff(s),

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vs.

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BACARA RIDGE ASSOCIATION, et al.,

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Defendant(s).

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Case No. 2:16-cv-02533-RFB-NJK
ORDER
(Docket Nos. 36, 37)

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Pending before the Court are Defendant SFR Investment Pool 1, LLC’s motions to serve

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Cross-Defendant Derek L. Smith by publication and to enlarge time to serve him. Docket Nos. 36,

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37. The Court finds these motions properly resolved without a hearing. See Local Rule 78-1. For

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the reasons discussed below, these 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 Cross-Defendant Smith by 60 days.

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II.

Motion for Leave to Serve by Publication

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Defendant seeks leave to serve Cross-Defendant Smith by publication. Docket No. 36. The

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

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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

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

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

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of attempts made to serve the party at his residence and other methods of locating the party, such as

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

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

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In this case, Defendant’s process servers have made numerous attempts to serve Cross-

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Defendant Smith at his last-known home address. See Docket No. 36-1 at 4-5. Additionally, using

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a national search engine, Defendant’s process servers have discovered post office box addresses and

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telephone numbers associated with Cross-Defendant Smith, and have attempted unsuccessfully to

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contact him using that information. Id. at 2-3. Defendant’s process servers have also attempted

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unsuccessfully to determine Defendant’s contact information through local, state, and cross-reference

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directories in Nevada, as well as the United States Postmaster. See id. Thus, the Court finds that

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Defendant has demonstrated sufficient diligence to warrant service by publication.

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III.

Conclusion

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For the reasons discussed above, the Court GRANTS Defendant’s motion to extend time to

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serve Cross-Defendant Smith. Docket No. 37. The deadline to serve Cross-Defendant Smith is

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hereby EXTENDED to May 19, 2017. The Court further GRANTS Defendant’s motion to serve

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Cross-Defendant Smith by publication. Docket No. 36.

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requirements of Nevada Rule of Civil Procedure 4 and shall serve Cross-Defendant Smith by

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publication in a newspaper of general circulation in the State of Nevada on a weekly basis for a

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period of four weeks. After publication is complete, Defendant shall file an Affidavit of Publication

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from the Nevada newspaper.

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IT IS SO ORDERED.

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DATED: April 5, 2017.

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Defendant shall comply with the

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NANCY J. KOPPE
United States Magistrate Judge

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