DE LAGE LANDEN FINANCIAL SERVICES, INC. v. CONVRGD DATA TECH, INC.

Filing 14

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GENE E.K. PRATTER ON 1/7/21. 1/7/21 ENTERED AND COPIES E-MAILED.(mbh, )

Case 2:20-cv-03621-GEKP Document 14 Filed 01/07/21 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DE LAGE LANDEN FINANCIAL
SERVICES, INC.,
Plaintiff

CIVIL ACTION

v.
CONVRGD DATA TECH, INC.,
Defendant

No. 20-3621

MEMORANDUM
PRATTER,

J.

JANUARY

-l-,

2021

De Lage Landen Financial Services, Inc. has again moved for an extension of time to serve
Defendant Convrgd Data Tech, Inc. and for leave to serve using substitute service. De Lage
Landen filed a complaint in July 2020 alleging that Convrgd had failed to make payments on five
lease agreements. In the intervening six months, De Lage Landen's efforts to serve Convrgd have
been unsuccessful. For the reasons that follow, the Court grants De Lage Landen an additional 30
days to serve Convrgd but denies its request for leave to serve Convrgd by email.
I.

Procedural History

Because the Court writes primarily for the benefit of the parties, it will discuss only those
facts that post-date De Lage Landen'f. first motion. 1
Since the Court granted De Lage Landen's first motion in part, De Lage Landen attempted
twice more to serve the sole corporate officer2 who is a U.S. resident at his Florida address. Both

The Court previously provided a fulsome recitation of the facts supporting De Lage Landen's first
motion. De Lage Landen Fin. Servs., Inc. v. ConvrgdData Tech, Inc., No. CV 20-3621, 2020 WL 6800316
(E.D. Pa. Nov. 19, 2020).
2

Rule 4(h)( 1) provides that domestic corporations may be served by "delivering a copy of the
summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service of process and-if the agent is one authorized by statute and the
statute so requires-by also mailing a copy of each to the defendant[.]" Fed. R. Civ. P. 4(h)(l)(B).

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attempts were unsuccessful and revealed that the officer no longer resided at that address. De Lage
Landen has been unable to discover any additional addresses for Convrgd's officers or employees.
In late November, De Lage Landen attempted service for a second time on Convrgd's
registered agent's registered agent. However, the business was closed due to the COVID-19
pandemic and would not re-open until 2021. Doc. No. 13. On December 30, 2020-four days
before the 45-day extension to serve expired-De Lage Landen engaged a process server to serve
Convrgd's registered agent at its new location. (In its first motion, De Lage Landen represented it
could not serve the registered agent because it had vacated its premises without updating its
address.) This business was also closed. The process server reported that it was likely "because
of the holiday." Doc. No. 11-5. De Lage Landen reports no other attempts to serve the business.

II.

Alternative Service
Federal Rule of Civil Procedure 4(e)(l) permits service 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."

Because the case is before the Eastern District of

Pennsylvania, Pennsylvania Rules of Civil Procedure apply. 3 Relevant here, Pennsylvania law
provides that:
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).
As the Court emphasized in its prior ruling, alternative service is a last resort. A plaintiff
moving for alternative service under Rule 430(a) must show "(1) a good faith effort to locate the
defendant; (2) practical efforts to serve the defendant under these circumstances; and (3) a method

3

The rule uses the disjunctive "or" for the applicable state law governing service. According to
records maintained by the California Secretary of State, Convrgd is registered in California.
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of alternative service that is reasonably calculated to provide the defendant with notice." Barbosa

v. Dana Capital Grp., Inc., 2009 WL 902339, at *4 (E.D. Pa. Mar. 31, 2009) (collecting cases).
Rule 430(a) articulates a non-exhaustive list for locating a defendant, including making inquiries
of postal authorities, examining voter registration records, and local tax records. See also Deer

Park Lumber, Inc. v. Major, 559 A.2d 941,946 (Pa. Super. Ct. 1989).
There is no question that De Lage Landen has satisfied the first element to locate Convrgd.
But De Lage Landen again stumbles at the second element. The Court reminded De Lage Landen
that "[h]alf-hearted attempts at service" do not count. Banegas v. Hampton, 2009 WL 1140268,
at *2 (E.D. Pa. Apr. 27, 2009).
De Lage Landen has established that the one corporate officer is no longer present at any
of the addresses publicly available. On this basis, the Court finds that it has exhausted its efforts
to locate and serve the officer.
But the Court cannot find De Lage Landen's attempts to serve the registered agent and the
registered agent's registered agent are1 sufficiently reasonable to warrant the relief it seeks. Courts
in this Circuit have found a plaintiffs efforts insufficient where three attempts were made, two of
which were on the same day of the week. Banegas, 2009 WL 1140268, at *2. The Court is not
blind to the challenges litigants face because of business closures in response to state orders to
address a pandemic. That said, the Court cannot ignore that De Lage Landen waited until the
eleventh-hour to attempt service for the first time on the registered agent at a time of year when
businesses otherwise tend be closed.
With the holiday season now concluded, De Lage Landen can re-attempt service on both
the registered agent and its registered agent (which, De Lage Landen represents, has re-opened in
the new year, Doc. No. 13 ii 19).

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Alternative service is warranted when the plaintiff has left no stone unturned. Grove v.

Guilfoyle, 222 F.R.D. 255, 257 (E.D. Pa. 2004). The Court can think of a few more stones to be
turned before it will consider granting this extraordinary relief.

III.

Extension of Time for Service
De Lage Landen again seeks an extension of time to effect service. An extension is

warranted when good cause exists for the plaintiffs failure to timely serve the defendant. Boley

v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997). Good cause in this context is equated with
excusable neglect. McCrae v. KLLM Inc., 89 F. App'x 361,364 (3d Cir. 2004). Excusable neglect
is shown by good faith by the party seeking an extension and a reasonable basis for noncompliance
with the rules, here Rule 4(m). Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1307 (3d
Cir.1995); Fed R. Civ. P. 4(m).
For the same reasons set forth in its prior ruling, the Court again finds that De Lage Landen
has established a good faith effort to locate Convrgd and has repeatedly attempted to serve
Convrgd. Although its attempts do not yet meet the threshold for leave to serve using alternate
means, the Court will grant De Lage Landen an additional 30 days to serve Convrgd.
CONCLUSION

For the reasons set out in this Memorandum, the Court grants De Lage Landen's motion
for an extension of time and denies at this time its motion for leave to serve by alternate means.
An appropriate Order follows.

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