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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 BANK OF AMERICA, N.A., 9 Plaintiff(s), 10 vs. 11 BACARA RIDGE ASSOCIATION, et al., 12 Defendant(s). ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-02533-RFB-NJK ORDER (Docket Nos. 36, 37) 13 14 Pending before the Court are Defendant SFR Investment Pool 1, LLC’s motions to serve 15 Cross-Defendant Derek L. Smith by publication and to enlarge time to serve him. Docket Nos. 36, 16 37. The Court finds these motions properly resolved without a hearing. See Local Rule 78-1. For 17 the reasons discussed below, these motions are GRANTED. 18 I. Motion to Extend Time for Service 19 Where good cause is shown, the time for serving the complaint is extended for an appropriate 20 period. See Fed. R. Civ. P. 4(m). The motion establishes sufficient cause to extend the time for 21 effectuating service on Cross-Defendant Smith by 60 days. 22 II. Motion for Leave to Serve by Publication 23 Defendant seeks leave to serve Cross-Defendant Smith by publication. Docket No. 36. The 24 Federal Rules of Civil Procedure provide for service pursuant to the law of the state in which the 25 district court is located, or in which service is made. See, e.g., Fed. R. Civ. P. 4(e)(1). Pursuant to 26 Rule 4 of the Nevada Rules of Civil Procedure, parties are generally required to personally serve 27 summons and the complaint upon defendants. Nevada law also permits a party to obtain leave for 28 1 service by publication when the opposing party, inter alia “cannot, after due diligence be found 2 within the state, or by concealment seeks to avoid the service of summons.” Nev. R. Civ. P. 4(e)(1). 3 There are several factors courts consider to evaluate a party’s due diligence, including the number 4 of attempts made to serve the party at his residence and other methods of locating the party, such as 5 consulting public directories and family members. See Price, 787 P.2d at 786-87; Abreu v. Gilmer, 6 985 P.2d 746, 747 (Nev. 1999); McNair v. Rivera, 874 P.2d 1240, 1241 (Nev. 1994). 7 In this case, Defendant’s process servers have made numerous attempts to serve Cross- 8 Defendant Smith at his last-known home address. See Docket No. 36-1 at 4-5. Additionally, using 9 a national search engine, Defendant’s process servers have discovered post office box addresses and 10 telephone numbers associated with Cross-Defendant Smith, and have attempted unsuccessfully to 11 contact him using that information. Id. at 2-3. Defendant’s process servers have also attempted 12 unsuccessfully to determine Defendant’s contact information through local, state, and cross-reference 13 directories in Nevada, as well as the United States Postmaster. See id. Thus, the Court finds that 14 Defendant has demonstrated sufficient diligence to warrant service by publication. 15 III. Conclusion 16 For the reasons discussed above, the Court GRANTS Defendant’s motion to extend time to 17 serve Cross-Defendant Smith. Docket No. 37. The deadline to serve Cross-Defendant Smith is 18 hereby EXTENDED to May 19, 2017. The Court further GRANTS Defendant’s motion to serve 19 Cross-Defendant Smith by publication. Docket No. 36. 20 requirements of Nevada Rule of Civil Procedure 4 and shall serve Cross-Defendant Smith by 21 publication in a newspaper of general circulation in the State of Nevada on a weekly basis for a 22 period of four weeks. After publication is complete, Defendant shall file an Affidavit of Publication 23 from the Nevada newspaper. 24 IT IS SO ORDERED. 25 DATED: April 5, 2017. 26 27 Defendant shall comply with the ______________________________________ NANCY J. KOPPE United States Magistrate Judge 28 2

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