Nevada General Insurance Company v. Anaya et al
MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen granting 54 Plaintiff's MOTION for Service by Publication. (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NEVADA GENERAL INSURANCE COMPANY,
CIV 15-0165 MCA/KBM
MICHELLE PROVENCIO A.K.A. MICHELLE BACA,
and ABELINO ROMERO,
MEMORANDUM OPINION AND ORDER
ALLOWING SERVICE BY PUBLICATION
THIS MATTER comes before the Court on Plaintiff’s Motion to Allow
Service by Publication (Doc. 54), filed December 1, 2016. Defendant Michelle
Provencio, a.k.a. Michelle Baca, for whom Plaintiff seeks permission to serve by
publication, has not yet been served with the Complaint in this matter; therefore,
no response to the motion is necessary. Having reviewed the motion and the
relevant authorities, the Court finds that the motion is well-taken and will be
In its motion, Plaintiff details various efforts that it has made to locate and
personally serve Defendant Michelle Provencio. Doc. 54. It asserts that
Defendant Michelle Provencio has intentionally concealed herself, and requests
permission to serve her by publication. Id.
There is no express provision for service by publication under the Federal
Rules of Civil Procedure. Yet Federal Rule of Civil Procedure 4(e)(1) allows for
service to be effected on a defendant 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.” Fed. R. Civ. P. 4(e)(1). Thus, Plaintiffs must satisfy the service
provisions set forth by New Mexico law in order to serve Defendant Michelle
Provencio by publication.
New Mexico Rule of Civil Procedure 1-004(J) and (K) provide for service
by publication. According to case law, however, this method of service is
generally limited to in rem or quasi in rem actions. See Pope v. Lydick Roofing
Co. of Albuquerque, 472 P.2d 375, 377 (1970). Here, Plaintiff has filed a
Complaint for Declaratory Judgment, asserting that it has named as defendants
all persons or entities that may be affected by the requested declaration. Doc. 1
This action arises from an August 25, 2014 accident involving a 2000
Chevrolet Malibu, which was owned and insured by Defendant Abelino Romeo.
Id. at 3. The Malibu, which Defendant Daniel Romero was driving at the time of
the accident, struck multiple cars following a high speed chase by law
enforcement. Id. at 4. Plaintiff asserts, upon information and belief, that
Defendant Michelle Provencio was a passenger in the Malibu and that she was,
at the time of the collision, the victim of an ongoing kidnapping by Defendant
Daniel Romero. Id. at 3-4. Plaintiff seeks a declaration that as to the incident,
there is no coverage under the policy insuring the Malibu. Id. at 9-10.
In the Court’s view, this is not a straightforward in personam action, as
would be an action for monetary damages. An argument could at least be made
that the Court’s jurisdiction should be considered quasi in rem – that is,
jurisdiction over a person based on that person’s interest in property located
within the Court’s territory. See SR Int’l. Bus. Ins. Co. LTD v. World Trade Center
Props., LLC, 445 F. Supp. 2d 356 (S.D.N.Y. Aug. 11, 2006) (noting one party’s
argument that the court had jurisdiction over a res, i.e. the insurance proceeds
available to the insureds); Nat’l Specialty Ins. Co. v. Advanced Cargo Transp.,
Inc., No. 14cv1417, 2014 WL 6473975 (M.D. Penn. Nov. 19, 2014) (considering,
upon a motion for service by publication, whether an action seeking a declaratory
judgment as to an insurer’s coverage obligations could be considered a quasi-inrem action); Cameron v. Penn Mut. Life Ins. Co., 161 A. 55 (N.J. Ch. June 14,
1932) (concluding that an action to reform a life insurance policy was quasi-inrem because the policy, or the Res, was “in the possession of the complaint and
within the control of the court”); Perry v. Young, 182 S.W. 577 (Tenn. 1916)
(classifying an action for reformation of a life insurance policy as a quasi-in-rem
action and permitting service on a non-resident defendant by publication).
According to the Supreme Court, the test for deciding whether an action is
quasi in rem is whether the judgment sought will affect the interests of particular
persons in designated property. Hanson v. Denckla, 357 U.S. 235, 246 (1957).
The test, however, “does not turn upon whether the relief prayed for seeks to
control defendants’ conduct, although in a Quasi in rem action a defendant may
be preliminarily restrained from engaging in certain activities with respect to the
Res.” Insurance Co. of North America v. Allied Crude Vegetable Oil Refining
Corp., 215 A.2d 579, 584 (N.J. Super. Ct. Ch. Div. 1965).
Some courts have reasoned that actions for rescission of an insurance
policy, declaratory judgment as to coverage for an insurance policy, or
interpleader of proceeds under an insurance policy, are not quasi-in-rem actions,
even though they “do not seek a money judgment from the defendant or an order
for him to do or refrain from doing any act.” See, e.g., Allied Crude Vegetable Oil
Refining Corp., 215 A.2d at 584-85 (collecting cases). In Allied Crude Vegetable
Oil Refining Corp., for example, the court determined that an action for rescission
of an insurance policy was an in personam action rather than a quasi-in-rem
action, reasoning that a court “does not acquire jurisdiction over an intangible
[e.g., an insurance policy] by the presence within the state of a writing evidencing
it.” Id. at 585. The court explained that “[j]urisdiction over an intangible can arise
only from power over the persons whose relationships are the source of the
rights and obligations.” Id. at 530 (citing Estin v. Estin, 334 U.S. 541, 548 (1948)).
Additionally, in National Specialty Ins. Co., the court concluded that an
insurance company’s declaratory judgment action to determine coverage
obligations under a liability policy was in personam rather than quasi in rem,
because it did not seek to resolve a dispute as to the title to the policy or its
proceeds but instead a declaration that the insurer had satisfied its contractual
obligations to defend and indemnify its insureds. 2014 WL 6473975 at *4; see
also SR Int’l Bus. Ins. Co. Ltd. v. World Trade Center Props., LLC, 445 F. Supp.
2d 356 (S.D.N.Y. 2006) (rejecting an argument that insurance proceeds available
to the insureds in coverage litigation constituted a res over which the court had
jurisdiction and noting that it only considered insurance proceeds to be a res
when they were deposited with the court; otherwise, suits involving insurance
coverage and insurance proceeds are simply in personam actions).
In contrast, other courts have held that when a plaintiff seeking resolution
of an insurance dispute files an insurance policy along with a complaint, the court
gains “control of the res” and has the ability to settle the status and rights of the
parties with respect to that policy through quasi-in-rem jurisdiction. See, e.g.,
Perry, 182 S.W. at 578; Cameron, 161 A. at 56-57.
Ultimately, the Court acknowledges that the law in this jurisdiction is
unsettled but declines to resolve the issue of whether the instant declaratory
judgment action qualifies as a quasi-in-rem action. The Court is satisfied that an
applicable exception within New Mexico law permits Plaintiff to serve Defendant
Michelle Provencio by publication, even assuming this is an in personam action.
Rule 1-004(J) NMRA, New Mexico Rules of Civil Procedure for District
[u]pon motion, without notice, and showing by affidavit that
service cannot reasonably be made as provided by this rule, the
court may order service by any method or combination of
methods, including publication, that is reasonably calculated
under all of the circumstances to apprise the defendant of the
existence and pendency of the action and afford a reasonable
opportunity to appear and defend.
NMRA 1-004(J) (emphasis added). While service by publication is generally
limited to in rem or quasi in rem actions, see Pope, 472 P.2d at 377, the New
Mexico courts make an exception for an in personam case in which “the
defendant, being aware that civil action may be instituted against [her], attempts
to conceal [herself] to avoid service of process.” Clark v. LeBlanc, 593 P.2d
1075, 1076 (N.M. 1979). This exception is premised upon the fact that, in
concealing, herself a party renders personal service or process impossible. Id.
According to the New Mexico Supreme Court, a party’s act of purposefully
concealing their whereabouts “constitutes a waiver of notice of the proceedings
sought to be avoided.” Id. In order to permit service by publication on the basis of
evasion, the Court must make a finding of fact that the defendant intentionally
concealed herself. See Edmonds v. Martinez, 215 P.3d 62 (N.M. Ct. App. 2009).
In an affidavit provided by Tamra Romo, a paralegal working for the Law
Offices of Bruce S. McDonald, Ms. Romo indicates that she attempted to
determine Defendant Michelle Provencio’s whereabouts through various means,
including through addresses provided in the August 25, 2014 police reports,
attempting personal service at these two addresses, an IPRA request for
documents from the Albuquerque Police Department, a Facebook search, and an
Accurint search. Doc. 54.
Examination of the police reports attached to Plaintiff’s motion reveals that
the sole passenger in the vehicle driven by Defendant Daniel Romero at the time
of the August 25, 2014 accident provided the name “Michelle Provencio” and the
address of “6180 Sequoia Rd. NW, Albuquerque, NM 87120” during the accident
investigation. Doc. 54-3 at 5. In contrast, that same person on the same day
while in the hospital gave the name “Michelle Baca” and the address of “123 La
Ladera, Los Lunas, NM 87031” during the kidnapping investigation. Doc. 54-4 at
1. A comparison of the police reports for these two incidents reveals that there
was only one passenger in the vehicle driven by Defendant Daniel Romero at the
time of the kidnapping and the auto accident. Compare Doc. 54-3 with 54-4.
Plaintiff has attempted to serve Defendant Michelle Provencio at both
addresses identified in the police reports. Doc. 54-2 at 2. While there was a
“Michele Provencio” present and personally served at 6180 Sequoia Rd., she
was not Defendant Michelle Provencio, the victim of the August 25, 2014
kidnapping. Doc. 54-2 at 2; Doc. 54-5 at 1. Moreover, the gentleman who lived
at the 123 La Ladera address explained to the process server that he had lived
there for ten (10) years and that Defendant Michelle Provencio, or Michelle Baca,
had never lived there during that time. Doc. 54-2 at ¶ 14.
Just as Defendant Michelle Provencio provided different names and
addresses to investigators of the August 25, 2014 accident and kidnapping, she
also provided different birthdates. During the kidnapping investigation, “Michelle
Baca,” as she referred to herself in that context, told law enforcement that her
birthdate was January 17, 1988. Doc. 54-4 at 14. According to police reports,
however, a “search of her purse later revealed a drivers [sic] license belonging to
her identifying her as Michelle Baca 01/15/1980.” Id.
Plaintiff has also turned to social media in an effort to locate the
defendant. According to Ms. Romo, Defendant Michelle Provencio’s Facebook
Page, which contains photographs that are “similar to the photographs of the
victim that were provided in [response to Plaintiff’s] IPRA Request,” does not
provide a current home or work address, though it does indicate that she lives in
the Albuquerque area. Doc. 54-2 at ¶ 25. Ms. Romo states that Defendant
Michelle Provencio’s Facebook Page provides yet a different birthdate: February
27, 1976. Doc. 54-2 at 3. Finally, a photocopy of the drivers’ license of “Michele
Provencio,” the actual resident of 6180 Sequoia Rd. who turned out not to be
Defendant Michelle Provencio, shows that “Michele Provencio’s” birthdate is
November 20, 1967. Doc. 54-5 at 1.
Given that she provided different names, birthdates, and addresses during
the course of the accident and kidnapping investigations, the Court finds that
Defendant Michelle Provencio deliberately concealed her identity and
whereabouts at the time of the underlying incident. Most significantly, she did not
actually reside at either address that she provided to law enforcement. Whether
Defendant Michelle Provencio was motivated by a failure to avoid service of
process in anticipated litigation or by some other reason, her intentional actions
rendered personal service of process impossible for Plaintiff, even after making
due inquiry. Under these circumstances, the Court is satisfied that this case is
one that is properly excepted from the general rule that service by publication is
unavailable for in personam actions. See Clark, 593 P.2d at 1076.
In addition to demonstrating that Defendant Michelle Provencio has
deliberately concealed herself, Plaintiff has also complied with the other
requirements of New Mexico Rule of Civil Procedure for District Courts 1-004(J)
and (K). It has provided the requisite proposed notice to be published in a
newspaper of general publication within Bernalillo County as well as an affidavit
establishing that personal service cannot reasonably be made. See Docs. 54-2
As such, service by publication shall be made, using the notice proposed
by Plaintiff, in a newspaper of general circulation in Bernalillo County once each
week for three consecutive weeks.
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Allow Service by
Publication (Doc. 54) is granted.
UNITED STATES CHIEF MAGISTRATE JUDGE
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