UNITED STATES OF AMERICA v. SMITH

Filing 3

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ANITA B. BRODY ON 1/30/2017. 1/30/2017 ENTERED AND COPIES VIA ECF AND U.S.MAIL.(mo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,
Plaintiff,
v.
ANTHONY E. SMITH,
Defendant.

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CIVIL ACTION
No. 16-5650

January _30, 2017

Anita B. Brody, J.
MEMORANDUM

Plaintiff United States of America brings this student loan collection action against
Defendant Anthony E. Smith. Plaintiff moves for allowance to serve Defendant by mail and
posting the summons and complaint at Defendant’s last known address because Plaintiff has
been unable to personally serve Defendant. Because Plaintiff’s efforts to locate and serve
Defendant are insufficient, I will deny Plaintiff’s Motion for Service by Posting Property and
Certified Mail.
“[C]onstitutional due process requires that service of process be ‘reasonably calculated,
under all circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.’” Calabro v. Leiner, 464 F. Supp. 2d 470, 471
(E.D. Pa. 2006) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950)). Under Federal Rule of Civil Procedure 4(e)(1), service may be executed pursuant to the
law of the state where the district court is located or where service is made. Because this Court
is located in Pennsylvania, Plaintiff seeks to provide alternative service to Defendant pursuant to
Pennsylvania law. Pennsylvania Rule of Civil Procedure 430(a) provides:
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If service cannot be made under the applicable rule the plaintiff may move the
court for a special order directing the method of service. The motion shall be
accompanied by an affidavit stating the nature and extent of the investigation
which has been made to determine the whereabouts of the defendant and the
reasons why service cannot be made.
Pa. R. Civ. P. 430(a).
“Alternative service is only appropriate as a ‘last resort’ when personal service cannot be
made.” United States v. Linares, No. 16-4463, 2016 WL 7014192, at *1 (E.D. Pa. Nov. 30,
2016) (quoting Johnson v. Berke Young Int’l L.L.C., No. 07-2240, 2007 WL 3010531, at *1
(E.D. Pa. Oct. 12, 2007)); Barbosa v. Dana Capital Grp., Inc., No. 07-1724, 2009 WL 902339,
at *4 (E.D. Pa. Mar. 31, 2009); Grove v. Guilfoyle, 222 F.R.D. 255, 256 (E.D. Pa. 2004). In
order to obtain permission for alternative service, a plaintiff must show that: “(1) it made a good
faith effort to locate the defendant; (2) it made practical efforts to serve her under the
circumstances; and (3) its proposed alternate means of service is ‘reasonably calculated to
provide the defendant with notice.’” Linares, 2016 WL 7014192, at *1 (quoting Premium
Payment Plan v. Shannon Cab Co., No. 04-4669, 2007 WL 2319776, at *2 (E.D. Pa. Aug. 13,
2007); Calabro, 464 F. Supp. 2d at 472. If a plaintiff has not made a sufficient effort to locate
and serve a defendant, then alternative service is not appropriate and there is no reason to
consider the third factor. Linares, 2016 WL 7014192, at *1.
Good Faith Effort to Locate Defendant
Rule 403(a) provides the following list of examples of good faith efforts: “(1) inquiries of
postal authorities including inquiries pursuant to the Freedom of Information Act, 39 C.F.R. Part
265, (2) inquiries of relatives, neighbors, friends, and employers of the defendant, (3)
examinations of local telephone directories, courthouse records, voter registration records, local
tax records, and motor vehicle records, and (4) a reasonable internet search.” Pa. R. Civ. P.

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430(a) note. A good faith effort to locate a defendant may also include hiring private
investigators or skip tracer services. Linares, 2016 WL 7014192, at *2; Barbosa, 2009 WL
902339, at *5. “[I]t is clear that ‘more than a mere paper search is required’ before service by
publication will be permitted.” Barbosa, 2009 WL 902339, at *5 (quoting Deer Park Lumber,
Inc. v. Major, 559 A.2d 941, 946 (Pa. Super. Ct. 1989)). Unless a plaintiff uses most of these
methods to locate the defendant, he will be unable to demonstrate that he has made a good faith
effort to personally serve the defendant. Linares, 2009 WL 902339, at *2; Barbosa, 2009 WL
902339, at *5.
Here, Plaintiff’s efforts to locate Defendant are insufficient to justify alternative service.
Plaintiff’s attempts to locate Defendant are listed on a one page “Affidavit of Good Faith
Investigation” that outlines an investigation into Defendant’s whereabouts that included a death
record search, an undefined employment search, a creditor header inquiry, an undefined
professional licenses search, a postal Freedom of Information Act inquiry, a military search, calls
to an unnamed possible relative and an unnamed possible neighbor, and to a possible number
belonging to Defendant, a correctional search, and a search of three social media sites. Pl.’s Mot.
Ex. B, ECF No. 2-3. Very few of these searches produced any information about Defendant.
Moreover, Plaintiff provides no additional evidence, such as Defendant’s credit report, to bolster
the adequacy of the investigation. While the affidavit reflects that the investigator made calls to
a possible relative and a possible neighbor, these individuals are not identified by name, there is
no evidence to support their possible connection to Defendant, and the investigator never reached
anyone during these calls nor left any messages. Although Plaintiff learned from the
Philadelphia County Assessment that James and Sarah Shearin are the property owners of
Defendant’s last known address, there is no evidence that Plaintiff attempted to reach out to the

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Shearins to verify if Defendant resided at the property. Pl.’s Mot. Ex. A, ECF No. 2-3.
Additionally, Plaintiff made no inquiry of voter registration records or tax records to confirm
Defendant’s address.
Many other courts in this district have encountered almost identical “Affidavits of Good
Faith Investigation.” In each case, these affidavits have been produced by the same legal
services support firm and submitted to the court by the same law firm. Several of these courts
have concluded that these affidavits are insufficient to establish Plaintiff’s good faith effort to
locate the defendant. See, Order, United States v. Mark K. Ishmael, No. 16-5376, at *2-3 (E.D.
Pa. Jan. 5, 2017), ECF No. 3; Linares, 2016 WL 7014192 at *2; United States v. Chhay, No. 152078, 2015 WL 5460640, at *2 (E.D. Pa. Sept. 17, 2015). But see Unites States v. Lori Cassel,
No. 12-784, 2013 WL 2495145, at *2 (E.D. Pa. June 11, 2013). Because of the above outlined
deficiencies in the investigation, Plaintiff has not demonstrated a good faith effort to locate
Defendant.
Practical Efforts to Serve Defendant
A plaintiff must also demonstrate that he has made practical efforts to serve the
defendant. “Generally, a plaintiff must make multiple attempts to serve a defendant in order to
demonstrate that alternative service is necessary.” Linares, 2016 WL 7014192, at *2 (E.D. Pa.
Nov. 30, 2016). “Half-hearted attempts at service will not do.” Calabro, 464 F. Supp. 2d at 473.
In circumstances where a plaintiff has made only three attempts at service, courts have often
been unwilling to find that the plaintiff has made practical efforts to serve the defendant. See
Linares, 2016 WL 7014192, at *3 (holding that the plaintiff did not make practical efforts to
serve the defendant after three attempts at service); Chhay, 2015 WL 5460640, at *2-3 (same);
Calabro, 464 F. Supp. 2d at 473 (same). “[A]s many as six repeated attempts at service and a

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stakeout may be necessary to demonstrate that all practical efforts were made to serve the
defendant.” Linares, 2016 WL 7014192, at *2 (E.D. Pa. Nov. 30, 2016); Olympic Steel, Inc. v.
Pan Metal & Processing, LLC, No. 11-6938, 2012 WL 682381, at *3 (E.D. Pa. Mar. 2, 2012);
Banegas v. Hampton, No. 08-5348, 2009 WL 1140268, at *2 (E.D. Pa. Apr. 27, 2009).
In this case, a process server made three attempts to serve Defendant at his last known
address on the following dates: Friday, December 23, 2016 at 9:00 p.m.; Tuesday, December 27,
2016 at 8:44 a.m.; and Wednesday, December 28, 2016 at 4:02 p.m. Pl.’s Mot., Ex. A, ECF No.
2-3. On each occasion, there was no answer at the property. Id. All three attempts to serve
Defendant occurred in a single six-day period that included such major holidays as Christmas,
Hanukkah, and Kwanzaa. Given the time of year that Plaintiff attempted to serve Defendant, it
is not surprising that no one answered at the property. There is no evidence that Defendant
evaded service or that future attempts at service would be futile. See Calabro, 464 F. Supp. 2d at
473 (holding that the plaintiff failed to make practical efforts to serve the defendant after three
attempts at service absent evidence that the defendant was evading service or that future attempts
at service would be futile). Based on these circumstances, Plaintiff has not made practical efforts
to serve Defendant.
I will deny Plaintiff’s motion for alternative service because Plaintiff has not made a
sufficient effort to locate and serve Defendant.1

s/Anita B. Brody
_______________________
ANITA B. BRODY, J.

Copies VIA ECF on _________ to:

Copies MAILED on _______ to:

Because Plaintiff’s efforts to locate and serve Defendant are insufficient, I do not address whether the
proposed alternate means of service is reasonably calculated to provide the defendant with notice. See
Linares, 2016 WL 7014192, at *2.
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