Bank of America, N.A. v. Desert Canyon Homeowners Association et al

Filing 45

ORDER - The Court GRANTS the motion to extend the deadline to effectuate service (ECF No. 41 ). The deadline to serve Defendant is extended by 60 days. The Court DENIES without prejudice the motion to serve Defendant by publication (ECF No. 40 ). Signed by Magistrate Judge Nancy J. Koppe on 9/5/2017. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 BANK OF AMERICA, N.A., 11 Plaintiff(s), 12 v. 13 DESERT CANYON HOMEOWNERS ASSOCIATION, et al., 14 Defendant(s). 15 ) ) ) ) ) ) ) ) ) ) ) Case No. 2:17-cv-00663-MMD-NJK ORDER (Docket Nos. 40, 41) 16 Pending before the Court are Plaintiff’s motions to extend time for service on Adrian Goering 17 (“Defendant”) and leave to serve her by publication. Docket Nos. 40, 41. For the reasons discussed 18 below, the motion to extend is GRANTED and the motion to serve by publication is DENIED without 19 prejudice. 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 on Defendant by 60 days. 24 II. Motion to Serve by Publication 25 Plaintiff also seeks to serve Defendant by publication. Service by publication implicates a 26 defendant’s fundamental due process rights. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 27 339 U.S. 306, 314-15 (1950); Price v. Dunn, 787 P.2d 785, 787 (Nev. 1990). As a result, service by 28 publication is generally disfavored. See, e.g., Trustees of the Nev. Resort Assoc.–Int’l Alliance of 1 Theatrical Stage Employees & Moving Picture Machine Operators v. Alumifax, Inc., 2013 U.S. Dist. 2 Lexis. 106456, *2 (D. Nev. July 29, 2013). 3 The Federal Rules of Civil Procedure provide for service within the United States pursuant to 4 the law of the state in which the district court is located, or in which service is made. See, e.g., Fed. R. 5 Civ. P. 4(e)(1). Pursuant to Rule 4 of the Nevada Rules of Civil Procedure, parties are generally 6 required to personally serve summons and the complaint upon defendants. Nevada law also permits a 7 party to 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, including 10 the number of attempts made to serve the defendant at his residence and other methods of locating 11 defendants, such as consulting public directories and family members. See Price, 787 P.2d at 786-87; 12 Abreu v. Gilmer, 985 P.2d 746, 747 (Nev. 1999); McNair v. Rivera, 874 P.2d 1240, 1241 (Nev. 1994). 13 In this case, Plaintiff attempted to serve Defendant at two addresses identified through the 14 Nevada Department of Motor Vehicles’ records, “national search engines,” and inquiries with the US 15 Postmaster. Docket No. 40-1 at 2-3. Plaintiff attempted to serve Defendant nine times, and was 16 eventually told by the resident (Defendant’s ex-husband) at 101 Luna Way, Apt. 119, Las Vegas, NV 17 89128, that Defendant resided elsewhere. See Docket No. 40-1 at 5. While such service efforts suffice 18 to extend the deadline to serve Defendant, the Court concludes that they are insufficiently diligent to 19 serve Defendant by publication.1 20 // 21 // 22 // 23 // 24 // 25 26 27 28 1 While not dispositive of the pending motion, the Court notes that Defendant’s ex-husband, Timothy Goering, is also a defendant in this matter and was properly served on May 26, 2017. Docket 39-1 at 1. Defendant’s ex-husband stated that Defendant “lives somewhere else in Las Vegas,” but no further inquiry was made. Docket No. 40-1 at 5. 2 1 III. Conclusion 2 For the reasons discussed above, the Court GRANTS the motion to extend the deadline to 3 effectuate service. Docket No. 41. The deadline to serve Defendant is extended by 60 days. The Court 4 DENIES without prejudice the motion to serve Defendant by publication. Docket No. 40. If Plaintiff 5 is unable to serve Defendant by the extended deadline, it may file a renewed motion for service by 6 publication explaining the additional steps that have been taken to locate and serve Defendant. 7 IT IS SO ORDERED. 8 DATED: September 5, 2017 9 10 ______________________________________ NANCY J. KOPPE United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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