Buffalo Hogan, Inc. v. Greene
ORDER by Chief Magistrate Judge Karen B. Molzen denying 41 Motion for Service by Publication without prejudice. (mlt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BUFFALO HOGAN, INC.,
CIV 16-0420 PJK/KBM
THERESA GREENE d/b/a Red Path
and d/b/a Cherokee Visions,
SOUTHWESTERN TREASURES, INC.,
PUEBLO DIRECT, INC., and DAVID SINGER,
t/a OutWest Gifts,
MEMORANDUM OPINION AND ORDER
DENYING SERVICE BY PUBLICATION
THIS MATTER comes before the Court on Plaintiff’s Motion for Service by
Publication on Defendant David Singer (Doc. 41) and Corrected Exhibit C (Doc. 42).
Having reviewed the Motion and relevant authorities, the Court finds that the Motion is
not well-taken and will be denied without prejudice at this time.
This is a copyright infringement action brought by Plaintiff, a designer and
manufacturer of Native American headdresses. Doc. 35 (Second Amended Complaint)
at ¶ 4. Plaintiff alleges that Defendant David Singer has purchased infringing
headdresses from Defendant Southwest Treasures and then, in turn, sold those
headdresses to customers throughout the United States. Id. ¶ 16.
In its Motion, Plaintiff details various efforts it has made to locate and personally
serve Defendant Singer. Doc. 41 at 1. Plaintiff first describes its efforts to discuss its
allegations with Singer prior to filing its Second Amended Complaint naming him as a
defendant. Id. This was done by two letters, sent on November 14 and 18, 2016. Docs.
41-1 & 41-2. The first letter was sent via federal express to Defendant Singer’s
residence, but was returned undelivered. Doc. 41-1. Plaintiff sent a second letter via first
class mail to Defendant Singer’s residential address and to a purported business
address. Doc. 41-2. Defendant Singer did not respond to these letters. Doc. 41 at 2.
While Plaintiff’s letters threatened litigation, they were not attempts at service. Indeed,
the Second Amended Complaint was not even filed until January 5, 2017. See Docs.
35, 41-1 & 41-2.
Plaintiff then employed ASAP Serve, a professional process server, to serve
Defendant Singer personally. Doc. 41 at 2. According to the affidavit of John Osborn, he
attempted to personally serve Defendant at his residence four times between January
21 and 31, 2017. Doc. 42. Mr. Osborn avers that on these occasions there was no
answer at Defendant’s door, despite the fact that he could hear noises consistent with
someone moving around inside the home. Id. Mr. Osborn further avers that he observed
a pickup truck in Defendant’s driveway with “OUTWEST GIFTS” printed on the doors
and that one of Defendant’s neighbors verified that he lives at the target residence. Id.
Plaintiff now moves the Court for permission to serve by publication, asserting
that Defendant Singer is consciously avoiding service despite its diligent efforts to serve
him personally. Doc. 41 at 1.
There is no express provision for service by publication under the Federal Rules
of Civil Procedure. However, Rule 4(e)(1) provides that a defendant may be served 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).
New Mexico Rule 1-004(F) requires personal service of process upon an
individual and specifies various methods in which personal service may be
accomplished. See Rule 1-004(F) NMRA. If personal service cannot reasonably be
accomplished in accordance with Rule 1-004(F), then constructive service is permitted
under Rule 1-004(J), which provides:
[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.
Rule 1-004(J) NMRA (emphasis added).
While service by publication is generally limited to in rem or quasi in rem actions,
the New Mexico Supreme Court has carved out an exception to this general rule “in
cases where the defendant, being aware that civil action may be instituted against him,
attempts to conceal himself to avoid service of process.” Clark v. LeBlanc, 1979-NMSC034, ¶ 7, 92 N.M. 672, 673, 593 P. 2d 1075, 1076.
This exception is based on the fact that “[i]n concealing himself, the
defendant, by his own action, renders personal service or process
impossible. This action constitutes a waiver of notice of the proceedings
sought to be avoided . . . . To allow a person to escape his civil
obligation by purposefully hiding himself would be to encourage
deception.” Id. In order to permit substituted service on the basis of
evasion, the Court must make a finding of fact that the defendant
intentionally avoided service of process. Edmonds v. Martinez, __
P.3d __, 2009 WL 2381282, at *4 (N.M. App. May 6, 2009).
Cowan et al. v. Angelico, et al., CIV 09-0483 JCH/LFG, Doc. 49 at 4 (emphasis added).
The Court notes that in the Cowan case, Magistrate Judge Lorenzo F. Garcia denied a
motion for service by publication even where the plaintiffs “made a prima facie showing”
that the defendants had “actual notice of the lawsuit” and were “intentionally avoiding
service of process.” Id. at 3. Judge Garcia specifically found that the Cowan plaintiffs
failed to satisfy the state requirements for service by publication because: (1) they did
not demonstrate by affidavit that service could not be accomplished by other available
methods; and (2) they did not include with their motion a copy of the notice they
proposed to publish. 1 The same rationale applies here.
Indeed,“[d]ue process prohibits the use of constructive service where it is feasible
to give actual notice.” Classen v. Classen, 1995-NMCA-022, ¶ 11, 119 N.M. 582, 585,
893 P.2d 478, 481 (citing Clark, 593 P.2d at 1076). Rule 1-004(F) describes several
different ways personal service may be accomplished. First, a plaintiff may deliver a
copy of a summons and complaint to the individual personally, or by mail or commercial
courier as provided in Rule 1-004(E)(3). 2 Rule 1-004(F)(1) NMRA. If either of these
means are unsuccessful, a plaintiff may “deliver a copy of the process to some person
residing at the usual place of abode of the defendant who is over the age of fifteen (15)
years and mailing by first class mail to the defendant and the defendant’s last known
mailing address a copy of the process[.]” Rule 1-004(F)(2) NMRA. Finally, if no other
means is successful,
In addition to the showing required under Rule 1-004(J), Rule 1-004(K) states that “[a] copy of
the proposed notice to be published shall be attached to the motion.” Rule 1-004(K) NMRA.
Under Rule 1-004(E)(3), “[s]ervice may be made by mail or commercial courier service
provided that the envelope is addressed to the named defendant and further provided that the
defendant or a person authorized by appointment, by law or by this rule to accept service of
process upon the defendant signs a receipt for the envelope or package containing the
summons and complaint, writ or other process. Service by mail or commercial courier service
shall be complete on the date the receipt is signed as provided by this subparagraph. For the
purposes of this rule ‘signs’ includes the electronic representation of a signature.” Rule 1004(E)(3) NMRA.
service of process may be made by delivering a copy of the process at
the actual place of business or employment of the defendant to the
person apparently in charge thereof and by mailing a copy of the
summons and complaint by first class mail to the defendant at the
defendant’s last known mailing address and at the defendant’s actual
place of business or employment.
Rule 1-004(F)(3) NMRA.
In determining whether to permit service by publication, District Judge Johnson
held that service must be “attempted through the hierarchy of mechanisms set out
under [Rule 1-004(F)]” and that a plaintiff must demonstrate “that this hierarchy was
followed in detail, although the attempts were unsuccessful.” See Soto v. Vill. of Milan
Police Dep’t, CIV 10-0043 WJ/ACT, Doc. 51 (Sept. 17, 2010) (citation omitted).
Clearly, Plaintiff has attempted to serve Defendant Singer personally, to no avail.
Other than the affidavit of the process server, however, Plaintiff provides no information
about any other attempts at service under the “hierarchy of mechanisms” available
under Rule 1-004(F). Although Plaintiff has exercised due diligence and seems to have
located Defendant Singer’s residence, it appears that Plaintiff has attempted only to
serve him personally at that location over a 10-day period. For all we know, Defendant
Singer was away on a 2-week trip during those visits, and he left his radio turned on to
create the impression that someone was at home.
There is no indication that Plaintiff attempted to personally serve Defendant at his
place of business as permitted by Rule 1-004(F)(3). Plaintiff also has not attempted to
effect service of process by mail or commercial courier as permitted by Rule 1004(F)(1)(b). True, Plaintiff initially sent letters to Defendant prior to filing the Second
Amended Complaint. Yet these mailings were not an attempt to effect service; they
simply advised that litigation could ensue in the absence of a response.
The Court finds that Plaintiff failed to attempt service by other available methods
authorized by Rule 1-004(F) prior to applying to this Court to permit service by
publication. The Court further finds that Plaintiff fails to demonstrate that effecting
service by such other methods would be unsuccessful. Finally, Plaintiff has failed to
attach to its Motion a copy of the proposed notice it seeks to publish, as required by
IT IS HEREBY ORDERED that Plaintiff’s Motion for Service by Publication on
Defendant David Singer (Doc. 41) is denied at this time.
UNITED STATES CHIEF MAGISTRATE JUDGE
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