Johnson v. Adams et al

Filing 59

ORDER denying 56 Motion for Service by Publication. Objections must be filing within 14 days. Signed by Judge James C. Mahan on 3/31/2020. (Copies have been distributed pursuant to the NEF - DRS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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FRANCIS JOHNSON,
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Plaintiff,
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vs.
MINOR ADAMS, et al.,

2:18-cv-00134-JCM-VCF
ORDER

Defendants.

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Before the court is the Motion for Service by Publication (ECF No. 56). Plaintiff seeks service by
publication on Defendant Mike Byrne.

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Background:

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Plaintiff filed an Application to Proceed In Forma Pauperis and a Complaint stating claims under

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42 U.S.C. § 1983. (ECF No. 1). The court screened the complaint, deferred the ruling on the Application

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to Proceed In Forma Pauperis, and referred the case to the Court’s Early Inmate Mediation program.

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(ECF No. 3). The Complaint was filed on December 20, 2018. (ECF No. 4). Plaintiff filed an Amended

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Complaint on January 24, 2019. A screening order on the Amended Complaint was entered on February

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6, 2019. (ECF No.6). The Inmate Early Mediation was held on April 5, 2019 and no settlement agreement

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was reached. (ECF NO. 9). The Attorney General’s Office filed a notice of acceptance of service for

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Borrowman but did not accept service on behalf of Defendants Minor Adams, Jo Gentry, or Mike Byrne.

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(ECF No. 12). On June 6, 2019, Plaintiff filed a Motion for the Court to Issue Subpoena for the defendants

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in which the Attorney General’s Office did not accept service. (ECF No. 15).

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On August 8, 2019, the United States Marshals Service (“USMS”) served defendants Jo Gentry

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and Minor Adams. (ECF Nos. 19 and 21). The USMS was unable to serve defendant Harold Mike Byrne

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because Byrne no longer lives at the address that the Attorney General’s (“AG”) office provided to the

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USMS. (ECF No. 23).

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On February 7, 2020, Plaintiff filed a motion seeking the court to extend time to effectuate service

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Defendant Byrne. (ECF NO. 44). The Court granted the motion and the time to effectuate service on

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Defendant Bryne was extended to May 28, 2020. (ECF NO. 51).

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Plaintiff has now filed a Motion for Publication of Summons by Newspaper on Defendant Byrne.
(ECF No. 56).

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Service By Publication

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Pursuant to Federal Rule of Civil Procedure 4(e)(1), “an individual – other than a minor, an

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incompetent person, or a person whose waiver had been filed – may be served in a judicial district of the

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United States by following state law for serving a summons in an action brought in courts of general

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jurisdiction in the state where the district court is located or where service is made.” Under Rule 4.4(c)

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of the Nevada Rules of Civil Procedure, when the person on whom service is to be made resides out of

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the state, or has departed from the state, or cannot, after due diligence, be found within the state, or by

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concealment seeks to avoid the service of summons, and the fact shall appear, by affidavit, to the

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satisfaction of the court or judge thereof, and it shall appear, either by affidavit or by a verified complaint

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on file, that a cause of action exists against the defendant in respect to whom the service is to be made,

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and that the defendant is a necessary or proper party to the action, such court or judge may grant an order

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that the service be made by the publication of summons.

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Nevada Rules of Civil Procedure 4.4(c)(1) establishes the conditions for publication. Service by

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publication may only be ordered when the defendant: (A) cannot, after due diligence, be found; (B) by

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concealment seeks to avoid service of the summons and complaint; or (C) is an absent or unknown person

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in an action involving real or personal property. Under NRCP 4.4(c)(2), which the court is required to

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follow for service by publication in federal action, requires the party seeking service by publication, based

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on the fact that defendant cannot be found, to submit an affidavit of due diligence, declarations, or other

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evidence verifying:

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(1) the last known address of the defendant;

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(2) the dates during which the defendant resided at that location, and,

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(3) confirmation that the plaintiff is unaware of any other address at which the defendant has

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resided since that time, or at which defendant can be found.

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Discussion

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Plaintiff’s motion presents a few problems.

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No affidavit of due diligence regarding service of Byrne was included in Plaintiff’s instant motion.

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An affidavit of due diligence regarding service must be included with the motion for publication. See

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NRCP 4.4(c)(2).

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Plaintiff was granted in forma pauperis status in this case (ECF No. 11) but Plaintiff will have to

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demonstrate a capability of making payment for the anticipated costs of publication. See Louis Ledesma

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v. State of Nevada, et al., case number 3:13-cv-00102-MMD-WGC, ECF No. 50, p. 1. In forma pauperis

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does not extend to the coverage of costs associated with service by publication since this is done through

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the private sector’s newspapers. Plaintiff’s motion does not discuss how he will pay for service by

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publication. (ECF No. 56).

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Here, Plaintiff has not met all the conditions pursuant to NRCP 4.4(c)(1) and 4.4(c)(2). Plaintiff

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will also have to demonstrate a capability of making payment for the anticipated costs of service by

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publication.

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Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motion for Service by Publication (ECF No. 56) is

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DENIED.

NOTICE

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Under Local Rule IB 3-1, any objection to this Order must be in writing and filed with the Clerk

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of the Court within 14 days. The Supreme Court has held that the courts of appeal may determine that an

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appeal has been waived due to the failure to file objections within the specified time. See Thomas v. Arn,

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474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file objections within the specified

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time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the

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District Court’s order and/or appeal factual issues from the order of the District Court. See Martinez v.

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Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th
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Cir. 1983).
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IT IS SO ORDERED.

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DATED this 31st day of March, 2019.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE