Andrade et al v. Dillman et al

Filing 26

ORDER. The Court GRANTS the 25 motion to extend the deadline to effectuate service on Defendants, and DENIES without prejudice the request for leave to serve Defendants by publication. The deadline to serve Defendants is extended to 12/15/2020. Signed by Magistrate Judge Nancy J. Koppe on 10/14/2020. (Copies have been distributed pursuant to the NEF - JQC)

Download PDF
Case 2:20-cv-01021-JAD-NJK Document 26 Filed 10/14/20 Page 1 of 2 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 MARCUS ANDRADE, et al., Case No.: 2:20-cv-01021-JAD-NJK Plaintiff(s), 7 ORDER 8 v. 9 JAPHETH DILLMAN, et al., 10 Defendant(s). [Docket No. 25] 11 Pending before the Court is Plaintiffs’ motion for an extension of time to serve Defendants 12 Japheth Dillman and Block Bits AML Holdings (“Defendants”) and for leave to serve Defendants 13 by publication. Docket No. 25. The motion is properly resolved without a hearing. See Local 14 Rule 78-1. For the reasons discussed below, the motion to extend the time to serve Defendants is 15 GRANTED, and the request to serve Defendants by publication is DENIED without prejudice. 16 I. 17 Motion to Extend Time for Service Where good cause is shown, the time for serving the complaint is extended for an 18 appropriate period. See Fed.R.Civ.P. 4(m). The motion establishes sufficient cause to extend the 19 time for effectuating service on Defendants to December 15, 2020. 20 II. 21 Motion for Leave to Serve by Publication Plaintiffs also seek leave to serve Defendants by publication. Service by publication is 22 generally disfavored because substituted service implicates a defendant’s constitutional right to 23 due process. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314–15; 24 Trustees of the Nev. Resort Assoc.—Int’l Alliance of Theatrical Stage Employees & Moving 25 Picture Machine Operators v. Alumifax, Inc., 2013 U.S. Dist. Lexis. 106456, *2 (D. Nev. July 29, 26 2013). 27 Service is to be provided pursuant to the law of the forum state, or in which service is made. 28 See Fed. R. Civ. P. 4(e)(1). Nevada law permits service by publication if the plaintiff cannot, after 1 Case 2:20-cv-01021-JAD-NJK Document 26 Filed 10/14/20 Page 2 of 2 1 due diligence, locate the defendant. See Nev.R.Civ.P. 4.4(c)(1)(a). Due diligence is that which is 2 appropriate to accomplish actual notice and is reasonably calculated to do so. See Abreu v. Gilmer, 3 115 Nev. 308, 313 (1999) (citing Parker v. Ross, 117 Utah 417, 217 P.2d 373, 379 (Utah 1950)). 4 Courts may consider the number of attempts made to serve the defendant at his residence and other 5 methods of locating the defendant, such as consulting public directories and family members. See, 6 e.g., Price v. Dunn, 787 P.2d 786, 786-87; Abreu 115 Nev. at 313; McNair v. Rivera, 110 Nev. 7 463, 874 P.2d 1240, 1241 (Nev. 1994). 8 Plaintiffs submit that they have demonstrated the requisite due diligence. Docket No. 25 9 at 3. Plaintiffs submit that Defendants “currently reside in an unknown unit” at a specific 10 California address. Docket No. 25-1 at 3. Plaintiffs further submit that they “were unable to find 11 the unit number . . . and do not have any alternative addresses” for Defendants. Id. However, it 12 appears that Plaintiffs have attempted to serve Defendants at the California address only once. See 13 Docket No. 25-2 at 4–5. Moreover, Plaintiffs have failed to document what efforts they undertook 14 to locate the unit number or other addresses. In fact, Plaintiffs do not discuss what efforts, in 15 addition to searching addresses, they have undertaken to satisfy their due diligence for purposes 16 of service by publication. Thus, Plaintiffs have failed to demonstrate the requisite due diligence 17 to warrant allowing service by publication. See Tsai-Lu Shen v. LaCour, 2020 WL 888042, at *2 18 (D. Nev. Feb. 24, 2020) (denying motion to serve by publication where “[p]laintiff has not shown 19 that he has investigated any other likely sources of information to locate the defendant”). 20 III. Conclusion 21 Accordingly, the Court GRANTS the motion to extend the deadline to effectuate service 22 on Defendants, and DENIES without prejudice the request for leave to serve Defendants by 23 publication. Docket No. 25. The deadline to serve Defendants is extended to December 15, 2020. 24 IT IS SO ORDERED. 25 Dated: October 14, 2020 ______________________________ Nancy J. Koppe United States Magistrate Judge 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?