Strohmeyer v. Belanger et al

Filing 124

ORDER denying 107 Plaintiff's Motion for Service by Publication and 123 Plaintiff's Motion to Strike. See Order for details. Signed by Magistrate Judge William G. Cobb on 2/27/2019. (Copies have been distributed pursuant to the NEF - HJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JEREMY STROHMEYER,
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Plaintiff,
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vs.
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K. BELANGER, et al.,
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Defendants.
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______________________________________)

3:14-cv-00661-RCJ-WGC
ORDER
Re: ECF No. 107

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Before the court is Plaintiff’s Motion for Leave to Serve Defendants Donna Jenkins (“aka Lisa
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Armstead”), James Keener, Keith Miranda and Michael Bobadilla1 by Publication. (ECF No. 107.) The

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Defendants who have appeared herein have opposed (ECF No. 115). No reply memorandum (which
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would have been due February 21, 2019, under LR 7-2(b)) has been received.
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BACKGROUND
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The Office of the Attorney General did not accept service on behalf of the subject Defendants
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(ECF No. 57), who were named as Defendants in Plaintiff’s Second Amended Complaint and against
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whom certain causes of action were allowed to proceed under the court’s screening order. (ECF No. 44.)
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Last known addresses for the subject Defendants were submitted under seal. (ECF No. 58.) The
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U.S. Marshal attempted service as to each of the subject Defendants but was unsuccessful. (Miranda,
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ECF No. 65; Jenkins, ECF No. 67; Keener, ECF No. 76; Bobadilla, ECF No. 77.) Because the subject
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Defendants could not be personally served, Plaintiff now seeks to effect alternative service by
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publication.
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Referred to herein as the “subject Defendants.”

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DISCUSSION

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Service by publication in a federal action is governed by Fed. R. Civ. P. 4(e)(1), which allows

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alternative service 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, i.e., Nevada. Rules 4(e)(1)(i) and (iii) of the

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Nevada Rules of Civil Procedure govern the conditions under which service of a summons by

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publication is permitted. The Nevada Rule reads in pertinent part as follows:

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(I) General. In addition to methods of personal service, 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 the service of summons, and the fact
shall appear, by affidavit, to the satisfaction of the court or judge thereof,
and it shall appear, either by affidavit or by a verified complaint on file,
that a cause of action exists against the defendant in respect to whom the
service is to be made, and that the defendant is a necessary or proper party
to the action, such court or judge may grant an order that the service be
made by the publication of summons.
Provided, when said affidavit is based on the fact that the party on whom
service is to be made resides out of the state, and the present address of
the party is unknown, it shall be a sufficient showing of such fact if the
affiant shall state generally in such affidavit that at a previous time such
person resided out of this state in a certain place (naming the place and
stating the latest date known to affiant when such party so resided there);
that such place is the last place in which such party resided to the
knowledge of affiant; that such party no longer resides at such place; that
affiant does not know the present place of residence of such party or
where such party can be found; and that affiant does not know and has
never been informed and has no reason to believe that such party now
resides in this state; and, in such case, it shall be presumed that such party
still resides and remains out of the state, and such affidavit shall be
deemed to be a sufficient showing of due diligence to find the defendant.
This rule shall apply to all manner of civil actions, including those for
divorce.

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(iii) Publication. The order shall direct the publication to be made in a
newspaper, published in the State of Nevada, to be designated by the
court or judge thereof, for a period of 4 weeks, and at least once a week
during said time. In addition to in-state publication, where the present
residence of the defendant is unknown the order may also direct that
publication be made in a newspaper published outside the State of
Nevada whenever the court is of the opinion that such publication is
necessary to give notice that is reasonably calculated to give a defendant
actual notice of the proceedings. In case of publication, where the
residence of a nonresident or absent defendant is known, the court or
judge shall also direct a copy of the summons and complaint to be
deposited in the post office, directed to the person to be served at the
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person’s place of residence. The service of summons shall be deemed
complete in cases of publication at the expiration of 4 weeks from the
first publication, and in cases when a deposit of a copy of the summons
and complaint in the post office is also required, at the expiration of 4
weeks from such deposit.

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Service by publication requires a two step analysis. The first is whether Plaintiff exercised due

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diligence in attempting to effect personal service. NRCP 4(e)(1)(i). The second step in the court’s

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analysis is whether the proposed newspaper wherein the notice is to be published is reasonably

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calculated to provide notice to the non-appearing Defendant, both in state (Nevada) and out of state (in

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this instance, Idaho and California).

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A.

Diligence

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The record reflects the U.S. Marshal unsuccessfully attempted service on the subject Defendants

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at the last known addresses the Office of the Attorney General provided for Defendants

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Jenkins/Armstead (ECF No. 67), Miranda (ECF No. 65), and Keener (ECF No. 67). The U.S. Marshal

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was similarly unsuccessful in serving Bobadilla at three (3) Southern California addresses (all in

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Norwalk, CA) which Plaintiff provided the U.S. Marshal in his USM-285 form (ECF No. 77).

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Therefore, the court finds Plaintiff, an inmate confined at High Desert State Prison, has exercised

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sufficient due diligence in attempting to effect personal service on the subject Defendants. See,

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Abrew v. Gilmer, 985 P.2d 746 (Nev. 1999).

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B.

Whether publication is reasonably calculated to give a defendant actual notice of the

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proceedings

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Plaintiff proposes publication in “Nevada Legal News.” Plaintiff attaches as Exhibit A to his

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motion (ECF No. 107 at 14) a letter from Nevada Legal News characterizing itself as a “newspaper” and

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that Nevada Legal news would be willing to publish, if accompanied by a court order and a “Pro Bono

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Waiver,” a summons and the complaint.

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Defendants object to the use of the “Nevada Legal News” as being a “subscription-only

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publication” (ECF No. 115 at 3), a characterization unrebutted by the Plaintiff. The court visited the

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website for Nevada Legal News (https://nevadalegalnews.com) and it appears that the “newspaper” is

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indeed available only by subscription (see, excerpt of website, Exhibit A, pp. 1 & 2 hereto). While the

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website characterizes the publication as a “newspaper of general circulation” (see Exhibit B), a link on
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the company’s website entitled “Click here for a Sample Edition” displays an edition for Tuesday, May

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30, 2017, which below the newspaper’s banner reads “Clark County’s Daily Business/Legal Newspaper”

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(Exhibit C, emphasis added).

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Therefore, the court is skeptical whether a subscription-only “newspaper” seemingly published

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primarily solely in Clark County (Southern Nevada) satisfies the requirements of NRCP 4(e)(1)(iii) for

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a newspaper of general circulation.

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The court also shares the Defendants’ skepticism whether Nevada Legal News is reasonably

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calculated to give the Defendants “actual notice of the proceedings” since the last known addresses for

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Defendants Keener and Miranda are Fallon and Sparks, Nevada, respectively. (ECF No. 107 at 11 and

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12.) The court finds an online publication which is self-characterized as being a Clark County

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publication is not intended to give adequate notice to two Northern Nevada residents, at least according

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to their last known addresses.

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NRCP 4(e)(1)(iii) also enables a court to reject service by publication in-state where it appears

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to the court the Defendant intended to be served resides out of state. Donna Jenkins (aks Lisa

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Armstead), according to Plaintiff, resides in Idaho. (ECF No. 107 at 3.) With regard to Defendant

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Bobadilla, Plaintiff provided three (3) potential addresses to the U.S. Marshal when he was seeking

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service by the Marshal and each of the addresses were in Norwalk, a community the court believes to

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be in Southern California. To whatever extent “Nevada Legal News” is a Nevada publication, its

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circulation (Southern Nevada) appears to be such that publishing a summons and complaint in that

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newspaper would not be reasonably calculated to provide ostensible Southern California and Idaho

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Defendants notice of these proceedings.

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CONCLUSION

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The court concludes that publication in Nevada Legal News would not be “reasonably

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calculated” to give the Defendants “actual notice of the proceedings.” Plaintiff’s Motion for Publication

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(ECF No. 107) is therefore DENIED without prejudice. If Plaintiff subsequently is able to identify

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general jurisdiction publications in each of the Defendants’ last known locales, the court would

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reconsider Plaintiff’s request for service by publication.

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Plaintiff is further advised his in forma pauperis status would not allow the costs of service by
publication to be an expense the court would cover.2

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IT IS SO ORDERED.

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DATED: February 27, 2019.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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Shortly after completion of this Order, the court received Plaintiff’s “Motion to Strike Defendants’
Response to Plaintiff’s Motion for Leave to Serve by Publication” (ECF No. 123). The proper procedure to rebut
a party’s opposition to another party’s motion is to file a reply memorandum, not a motion to strike. LR 7-2(b).
A motion to strike only pertains to “pleadings.” [Fed. R. Civ. P. 12(f).] A memorandum of points and authorities
in response to a motion is not a “pleading.” Fed. R. Civ. P. 7(a). To the extent ECF No. 123 is considered a
motion, the motion is DENIED.
Alternatively, to the extent Plaintiff’s motion to strike is considered to be a reply memorandum to
Defendants’ opposition, the court finds no substantive argument therein which would alter the court’s conclusion
that “Nevada Legal News” is not an appropriate newspaper to utilize to effect service of publication. The court’s
conclusion that Plaintiff’s motion for service by publication remains intact.
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