The Bank of New York Mellon v. Premier One Holdings, Inc. et al

Filing 29

ORDER granting 11 Motion to Extend Time; granting 19 Motion for Service by Publication as to Shin and denying as moot as to Zhang. Proof of service due by 9/12/2017. Signed by Magistrate Judge Cam Ferenbach on 7/12/2017. (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 SUCCESSOR
TO JPMORGAN CHASE BANK, et al.,
Plaintiffs,

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vs.
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2:17-cv-00737-JCM-VCF
ORDER GRANTING ENLARGMENT OF
TIME TO SERVE AND SERVICE BY
PUBLICATION (ECF NO. 11 & 19)

PREMIER ONE HOLDINGS INC., et al.,
Defendants.

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Before the court are Plaintiff’s Motion for Extension to Serve Defendants Ying M. Shin (“Shin”)
and Bin Zhang (“Zhang”) (ECF No. 11) and Plaintiff’s Motion for Service by Publication on Defendant
Ying M. Shin (ECF No. 19).
Plaintiff seeks to extend the time in which to effectuate service under Federal Rule of Civil
Procedure 4(m) on Shin and Zhang. (ECF No. 11). Plaintiff asks this court to permit service of the
Summons and Complaint on Shin by publication. (ECF No. 19)

No opposition has been filed to both

motions. On July 7, 2017, Plaintiff filed a returned executed Summons on Zhang. (ECF No. 24).
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
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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Plaintiff asserts that the after diligent effort, it is unable to serve Shin within the state of Nevada.

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(ECF No. 19). In support of this assertion, Plaintiff provided the court with several affidavits of attempted

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services (ECF Nos. 11-1, 19-1, 19-2, 19-3). The last known addresses for Shin are 5055 W. Hacienda

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Ave., #1029, Las Vegas, Nevada 89118, 8313 Agnew Valley Ct., Las Vegas, Nevada 89178, 5237 Sacha

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Way, Las Vegas, Nevada 89118. Id. Service at these 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 Shin 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 asserts that additional time is required to effect service, and asks this court to extend the

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4(m) deadline. (ECF No. 11). The Complaint was filed on March 14, 2017 which made the last day that

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Plaintiff must effectuate service on Shin was by June 12, 2017. Fed. R. Civ. P. 4(m).

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

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provided support for its request for an extension, the court will extend the 4(m) deadline until September

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12, 2017. See 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 Plaintiff’s Motion for Extension to Serve Defendants Ying M.
Shin and Bin Zhang (ECF No. 11) is GRANTED as to Shin and DENIED as moot as to Zhang.

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IT IS FURTHER ORDERED that Plaintiff is permitted to serve Shin by publication. A copy of

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the Summons and Complaint must be mailed to Shin at his last known address(es) 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 September 12, 2017.
DATED this 12th day of July, 2017.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE