Cold Spring Construction Company v. Spikes et al
Filing
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DECISION AND ORDER GRANTING in part and DENYING in part Plaintiff's 17 Motion to Extend Time to Serve Complaint and to Serve by Alternative Means. Signed by William M. Skretny, Chief Judge U.S.D.C. on 1/9/2012. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
COLD SPRING CONSTRUCTION COMPANY,
Sponsor and Plan Administrator of the
COLD SPRING CONSTRUCTION COMPANY
EMPLOYEES’ PROFIT SHARING PLAN AND
TRUST,
Plaintiff,
v.
DECISION AND ORDER
SHANDA M. SPIKES, et al.,
11-CV-700S
Defendants.
I. INTRODUCTION
Presently before the Court is Plaintiff’s motion, pursuant to Federal Rules of Civil
Procedure 4 and 6, to extend the time to serve two defendants, and for approval of
alternate means of service. For the reasons stated below, the motion is granted in part
and denied in part.
II. DISCUSSION
This interpleader action relates to the disbursement of the balance of a profit sharing
plan account held for a deceased individual. Plaintiff has identified ten potential individual
beneficiaries. Eight of the ten known defendants have been served. The instant motion
relates to service on Jermain Travis Scott, whose whereabouts is unknown, and on Carl
Lee Spikes, Jr., who is serving in the United States Army overseas at an undisclosed
location. Since commencing this action on August 24, 2011, Plaintiff has made multiple
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attempts to locate and/or serve these individuals. Prior to expiration of the 120 day time
limit for service, Plaintiff moved for an extension of time to serve both individuals, and for
authorization to serve them by alternative means.
A.
Jermain Travis Scott
Federal Rule of Civil Procedure 6(b)(1)(A) provides that the Court may, for good
cause shown, extend the time in which an act may or must be done where a party’s
request is made before the original time or any previously granted extension expires.
Since commencing this action, Plaintiff attempted to serve this defendant at his last
known address, where he no longer resides; attempted to obtain information from family
members as to the defendant’s current whereabouts; followed up on information that the
defendant may be incarcerated by searching state department of corrections websites;
employed a private investigator to search for the defendant; and attempted to serve the
defendant at the address provided by the investigator, only to find that the defendant no
longer resides there. (Docket No. 18, Mahr Aff. ¶¶ 9-17.)
There is no basis to believe this defendant will be prejudiced by a delay in service,
and Plaintiff’s diligence in pursuing service is good cause to extend its time for the
requested 90 days from the expiration of the original deadline.
B.
Carl Lee Spikes, Jr.
Plaintiff was advised at the outset of this action that this defendant is a member of
the armed forces, serving overseas. Plaintiff was provided an Army Post Office (“APO”)
address as a means of communicating with the defendant. A family member also provided
an email address and telephone number. Plaintiff mailed the Request to Waive Service
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of a Summons and other papers. In addition, Plaintiff emailed the same papers to the
defendant three times, telephoned and left messages for him three times, and spoke to
him twice by telephone. In the first conversation, defendant advised that he had received
the papers sent to his APO address, was deployed and was not allowed to provide any
information that could assist with personal service, and wished to speak with a JAG officer
before signing the Waiver of Service. In the second conversation, on December 14, 2011,
the defendant advised that he had spoken with his JAG officer, would sign the waiver, but
was then on a mission and would not be able to do so until December 19th or 20th, or
later. In other words, even assuming the defendant’s compliance, there is no guarantee
service will be complete prior to expiration of the 120 day time period. (Mahr Aff. ¶¶ 1925.)
There is no basis to believe this defendant will be prejudiced by a delay in service,
and Plaintiff has shown good cause to extend its time for the requested 90 days from the
expiration of the original deadline.
Plaintiff hopes to receive this defendant’s Waiver of Service form on or before
January 10, 2012. If it does not, it seeks authorization to serve the defendant by mailing
the summons and complaint to his APO address, and by sending the documents to the two
email addresses the defendant provided to Plaintiff.
“A Court may direct service on an individual in a foreign country by any means not
prohibited by international agreement.” Western Supreme Buddha Ass’n, Inc. v. Oasis
World Peace and Health Found., No. 08 Civ. 1374, 2011 U.S. Dist. LEXIS 23483, at *3
(N.D.N.Y. Mar. 9, 2011) (citations and internal quotation marks omitted); Fed. R. Civ. P.
4(f)(3). Because this defendant’s whereabouts is unknown, the Court cannot determine
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whether the country in which he is located is a signatory to the Hague Convention. Even
assuming that it is, service by mail and email would not be prohibited by international
agreement as the “Convention shall not apply where the address of the person to be
served with the document is not known.” 20 U.S.T. 361 Art. 1.
This district has previously held that Rule 4(f)(3) provides “an independent basis for
service of process and is neither ‘extraordinary relief’ nor a ‘last resort’ to be used only
when parties are unable to effectuate service under subsections (f)(1) and (f)(2).” Ryan
v. Brunswick Corp., No. 02 Civ. 133, 2002 U.S. Dist. LEXIS 13837, at *7 (W.D.N.Y. May
31, 2002) (citing Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002)).
The court may, however, impose a threshold requirement for the plaintiff to show
reasonable attempts to effectuate service such that the court order is necessary. Western
Supreme, 2011 U.S. Dist. LEXIS 23483, at *3; Ryan, 2002 U.S. Dist. LEXIS 13837, at *7-8.
As already determined, that threshold is met here.
Finally, any alternative methods of service must comport with due process by being
“reasonably calculated, under all the circumstances, to apprize interested parties of the
pendency of the action and afford them an opportunity to present their objections.”
Mullane v. Cent. Hanover Bank & Trust Co., 399 U.S. 306, 314 (1945). This Court finds
that service by mail and email is constitutionally permissible here. This defendant has
confirmed his receipt of a prior mailing to the APO address Plaintiff intends to use, and
affirmatively provided Plaintiff with the personal and Army email addresses Plaintiff intends
to use. (Mahr Aff. ¶¶ 24-25.) In light of these prior communications, the Court finds the
requested methods of service are reasonably calculated to safeguard due process.
Accordingly, I will authorize the requested alternate means of service for Carl Lee Spikes,
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Jr., to be employed, if necessary, after January 10, 2012.
I note that, in a single sentence, Plaintiff states “it is unable to locate Defendant J.
Scott and seeks guidance from the Court to serve him by alternate means pursuant to Rule
4(e)(1). To the extent this request for “guidance” can be construed as a request for
affirmative relief, Plaintiff has offered no basis from which this Court can conclude that
there exists an alternate means of service for Jermain Travis Scott that would comport with
due process. Accordingly, no “guidance” is warranted.
III. CONCLUSION
For the reasons stated, Plaintiff’s requests for an extension of time to serve Jermain
Travis Scott and Carl Lee Spikes, Jr., and to serve Carl Lee Spikes, Jr. by alternative
methods, if necessary, are granted. To the extent Plaintiff seeks to serve Jermain Travis
Scott by alternative means, the request is denied.
IV. ORDERS
IT HEREBY IS ORDERED that Plaintiff’s Motion to Extend Time to Serve Complaint
and to Serve by Alternative Means (Docket No. 17) is GRANTED IN PART and DENIED
IN PART.
SO ORDERED.
Dated:
January 9, 2012
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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