TILLMAN v. FEDERAL HOME LOAN MORTGAGE CORPORATION et al

Filing 40

MEMORANDUM AND OPINION. SIGNED BY HONORABLE JOHN R. PADOVA ON 4/9/13. 4/10/13 ENTERED & E-MAILED.[fdc]

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HERBERT TILLMAN
v.
FEDERAL HOME LOAN
MORTGAGE CORP., ET AL.

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CIVIL ACTION

NO. 12-3260

MEMORANDUM
Padova, J.

April 9, 2013

Plaintiff Herbert Tillman brings this action under the Federal Tort Claims Act, 28 U.S.C.
§ 2671, et seq., alleging that he tripped on or fell into a hole at a property managed by the
Defendants. Presently before the Court is Plaintiff‟s Motion for Alternative Service. For the
following reasons, we deny the Motion without prejudice.
I.

BACKGROUND
On November 19, 2012, Plaintiff filed an Amended Complaint, asserting one claim of

negligence against Defendant E&D Property Service LLC (“E&D”).

On January 7, 2013,

summons issued to E&D at its address at 8001 Castor Avenue was returned unexecuted. The
process server indicated that 8001 Castor Avenue was actually the location of a post office box,
and that E&D did not have an office at that location. (Pl.‟s Mot. Ex. D.) Plaintiff sent a
Freedom of Information Act inquiry to the United States Post Office, which replied that E&D‟s
8001 Castor Avenue address was “good as addressed.” (Pl.‟s Mot. Ex. E.) Plaintiff then
conducted a search on LexisNexis and discovered an alternative address for E&D at 4505
Somerton Road. (Pl.‟s Mot. Ex. F.) On February 11, 2013, a summons issued to E&D at 4505
Somerton Road was returned unexecuted, and the process server indicated that an adult female
on the premises stated that E&D was not located at that address. (Pl.‟s Mot. Ex. G.) Plaintiff

conducted additional searches on bizapedia.com and findthecompany.com, which confirmed that
E&D‟s 4505 Somerton Road address was current. (Pl.‟s Mot. Ex. H, I.) Plaintiff sent a second
Freedom of Information Act inquiry to the United States Post Office, which replied that E&D‟s
4505 Somerton Road address was current and there was “no change of address order on file.”
(Pl.‟s Mot. Ex. J.) On April 5, 2013, Plaintiff filed a Motion for Alternative Service, seeking
court approval to serve E&D at 4505 Somerton Road by certified and regular mail.1
II.

LEGAL STANDARD
Under Federal Rule of Civil Procedure 4(h), a plaintiff may serve a corporation,

partnership, other unincorporated association “in the manner prescribed by Rule 4(e)(1) for
serving an individual.” Fed. R. Civ. P. 4(h)(1)(A). Pursuant to Rule 4(e)(1), a plaintiff may
serve a defendant pursuant to the law of the state in which the district court sits, or where service
is made. Fed. R. Civ. P. 4(e)(1). Thus, in this case, Plaintiff may serve E&D in accordance with
the Pennsylvania Rules of Civil Procedure. Under Pennsylvania Rule of Civil Procedure 424,
service on a corporation or similar entity shall be made by personally serving the summons and
complaint to:
(1) an executive officer, partner or trustee of the corporation or similar entity, or
(2) the manager, clerk or other person for the time being in charge of any regular
place of business or activity of the corporation or similar entity, or (3) an agent
authorized by the corporation or similar entity in writing to receive service of
process for it.
Pa. R. Civ. P. 424.

1

The proposed order that Plaintiff submitted with his motion would permit service to be
effectuated by both serving the summons and Amended Complaint by regular and certified mail,
and posting the premises. However, Plaintiff‟s Motion and Memorandum do not mention
posting the premises, and thus, we do not read the Motion to propose service that includes
posting the property.
2

Pennsylvania Rule of Civil Procedure 430 provides that “[i]f service cannot be made
under the applicable rule the plaintiff may move the court for a special order directing the
method of service.” Pa. R. Civ. P. 430(a). Under Rule 430, a plaintiff seeking court approval to
employ an alternative method of service must meet the following conditions: “(1) the plaintiff
must make a good faith effort to locate the defendant; (2) the plaintiff must show that he has
made practical efforts to serve the defendant under the circumstances; and (3) the plaintiff‟s
proposed alternate means of service „must be reasonably calculated to provide the defendant with
notice of the proceedings against him.‟” Banegas v. Hampton, Civ. A. No. 08-5348, 2009 WL
1140268, at *2 (E.D. Pa. Apr. 27, 2009) (quoting Premium Payment Plan v. Shannon Cab Co.,
Civ. A. No. 04-4669, 2007 WL 2319776, at *2 (E.D. Pa. Aug. 13, 2007)).
III.

DISCUSSION
In order to demonstrate that alternative service is appropriate, Plaintiff first “must make a

„good faith‟ effort to locate defendant.” Calabro v. Leiner, 464 F. Supp. 2d 470, 472 (E.D. Pa.
2006) (citing cases). Good faith efforts may include Freedom of Information Act inquiries to
postal authorities, inquiries of the defendant‟s relatives, neighbors, friends, or employers, and
examinations of local telephone directories, voter registration records, tax records, and motor
vehicle records. Pa. R. Civ. P. 430(a) note. Plaintiff made two Freedom of Information Act
inquiries to the United States Post Office and searched three internet databases for E&D‟s
address. However, Plaintiff has not indicated that he has attempted to locate any of E&D‟s
executive officers, partners, trustees, or managers that are capable of accepting service on behalf
of E&D, or that he has examined any public records to identify such individuals. See Olympic
Steel Inc. v. Pan Metal & Processing, LLC, Civ. A. No. 11-6938, 2012 WL 682381, at *3 (E.D.
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Pa. Mar. 2, 2012) (noting that the plaintiff made a good faith effort to locate both the defendant
corporation and “someone who might accept process for” the defendant, such as the
corporation‟s organizer). Therefore, Plaintiff has not demonstrated that he has made a good faith
effort to locate any of E&D‟s employees who are capable of accepting service on E&D‟s behalf.
“Second, once defendant is located, plaintiff must show that [he] has made practical
efforts to serve defendant under the circumstances.” Calabro, 464 F. Supp. 2d at 472. Plaintiff
has made two attempts to serve E&D, once in January at 8001 Castor Avenue, and once in
February at 4505 Somerton Road. “The number of times a plaintiff attempts to make service is
not necessarily determinative of whether the efforts were reasonable and practical, but it is
certainly probative.” Banegas, 2009 WL 1140268, at *2; see also id. (noting that “[c]ourts in this
district have found a plaintiff‟s efforts to be sufficient when he or she has made six attempts at
service, or „repeated attempts . . . including a stake out.” (citations omitted)). Each of the
internet databases that Plaintiff used indicate that the current address for E&D is 4505 Somerton
Road, yet Plaintiff has only attempted to serve E&D at that address on one occasion. Under
these circumstances, Plaintiff has not demonstrated that he has made sufficient practical efforts
to serve E&D at the 4505 Somerton Road address.
Third, “the plaintiff‟s proposed alternate means of service must be reasonably calculated
to provide the defendant with notice of the proceedings against him.” Calabro, 464 F. Supp. 2d
at 472 (citations omitted). Plaintiff proposes to mail the summons and Amended Complaint, via
regular mail and certified mail, to E&D at its 4505 Somerton Road address. However, Plaintiff
has already attempted, unsuccessfully, to serve E&D at that address, and Plaintiff does not allege
that E&D is concealing its whereabouts or refusing to accept service at the 4505 Somerton Road
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address. If E&D‟s office is not actually located at that address, then mailing the summons and
Amended Complaint there will not adequately effectuate service on E&D. See Johnson v. Berke
Young Int‟l, LLC, Civ. A. No. 07-2240, 2007 WL 3010531, at *2 (E.D. Pa. Oct. 12, 2007)
(noting that service via mail to the defendant corporation‟s last known address was not
appropriate where the plaintiff unsuccessfully attempted to serve the defendant there on one
occasion). Therefore, Plaintiff has not demonstrated that mailing the summons and Amended
Complaint to 4505 Somerton Road would be reasonably calculated to provide notice to E&D of
Plaintiff‟s claim against it.
“Alternative service is a remedy of „last resort,‟ and is only appropriate when service
under the applicable rules of civil procedure cannot be made.” Morgan Truck Body, LLC v.
Integrated Logistics Solutions, LLC, Civ. A. No. 07-1225, 2008 WL 746827, at *6 (E.D. Pa.
Mar. 20, 2008) (citing Grove v. Guilfoyle, 222 F.R.D. 255, 256 (E.D. Pa. 2004). For all of the
above reasons, we conclude that Plaintiff has not satisfied his burden under the Pennsylvania
Rules of Civil Procedure to demonstrate that alternative service is appropriate in these
circumstances.
IV.

CONCLUSION
For the foregoing reasons, we deny Plaintiff‟s Motion for Alternative Service without

prejudice to his renewal of the Motion after further attempts at traditional service have been
made.
BY THE COURT:
/s/ John R. Padova
___________________
John R. Padova, J.

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