Rasband et al v. Sterling et al

Filing 10

MEMORANDUM DECISION AND ORDER denying without prejudice 9 Motion for Service by Publication. Signed by Judge Ted Stewart on 1/22/13 (alt)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

JUDITH RASBAND, an individual, and
CONSELLE, LLC, a limited liability
company,
Plaintiffs,

MEMORANDUM DECISION AND
ORDER DENYING WITHOUT
PREJUDICE EX PARTE MOTION
FOR ORDER ALLOWING SERVICE
BY PUBLICATION AND
EXTENDING TIME FOR SERVICE

vs.

MICHELLE T. STERLING, an individual,
GLOBAL IMAGE GROUP, INC., a
corporation, STERLING STYLE
ACADEMY, and JOHN DOES I-X,

Case No. 2:12-CV-509 TS

Defendants.

This matter is before the Court on Plaintiffs’ Ex Parte Motion for Order Allowing Service
by Publication and Extending Time for Service. For the reasons set forth below, the Court will
deny the Motion without prejudice.

1

I. BACKGROUND
Plaintiffs filed this action against Defendants on May 5, 2012, alleging copyright
infringement, Lanham Act violations, intentional interference with prospective economic
relations, a violation of the Utah Unfair Competition Act, and alter ego. On September 21, 2012,
Plaintiffs sought additional time to serve Defendants pursuant to Fed. R. Civ. P. 4(m). The Court
granted that request on September 24, 2012, granting Plaintiffs an addition 120 days to effect
service. Plaintiffs now seek permission to effect service by publication.
II. DISCUSSION
Pursuant to Fed. R. Civ. P. 4(e)(1), the Court may allow service of process as permitted
by Utah law. Rule 4(d)(4)(a) of the Utah Rules of Civil Procedure provides:
Where the identity or whereabouts of the person to be served are unknown and
cannot be ascertained through reasonable diligence, where service upon all of the
individual parties is impracticable under the circumstances, or where there exists
good cause to believe that the person to be served is avoiding service of process,
the party seeking service of process may file a motion supported by affidavit
requesting an order allowing service by publication or by some other means. The
supporting affidavit shall set forth the efforts made to identify, locate or serve the
party to be served, or the circumstances which make it impracticable to serve all
of the individual parties.1
Under this rule, litigants may not resort to service by publication until they have
first undertaken reasonably diligent efforts to locate the party to be served. This
reasonable diligence requirement arises from constitutional due process rights and
the recognition that publication alone is generally not a reliable means of
informing interested parties that their rights are at issue before the court.2

1

Utah R. Civ. P. 4(d)(4)(A).

2

Jackson Constr. Co., Inc. v. Marrs, 100 P.3d 1211, 1215 (Utah 2004).
2

“A determination of reasonable diligence thus properly focuses on the plaintiff’s efforts to
locate the defendant. Relevant factors may include the number of potential defendants involved,
the projected expense of searching for them, and the number and type of sources of available
information regarding their possible whereabouts . . . .”3
“The reasonable diligence standard does not require a plaintiff to exhaust all possibilities
to locate and serve a defendant. It does, however, require more than perfunctory performance.”4
The diligence to be pursued and shown by the affidavit is that which is
reasonable under the circumstances and not all possible diligence which may be
conceived. Nor is it that diligence which stops just short of the place where if it
were continued might reasonably be expected to uncover an address or the fact of
death of the person on whom service is sought. . . . [Reasonable diligence] is that
diligence which is appropriate to accomplish the end sought and which is
reasonably calculated to do so. If the end sought is the address of an out-of-state
defendant it encompasses those steps most likely, under the circumstances, to
accomplish that result.5
To meet the reasonable diligence requirement, a plaintiff must take
advantage of readily available sources of relevant information. A plaintiff who
focuses on only one or two sources, while turning a blind eye to the existence of
other available sources, falls short of this standard. In a case such as this,
involving out-of-state defendants, a plaintiff might attempt to locate the
defendants by checking telephone directories and public records, contacting
former neighbors, or engaging in other actions suggested by the particular
circumstances of the case. Advances in technology, such as the Internet, have
made even nationwide searches for known individuals relatively quick and
inexpensive.6

3

Id. at 1216.

4

Id. at 1217 (internal quotation marks and citation omitted).

5

Parker v. Ross, 217 P.2d 373, 379 (Utah 1950) (Wolfe, J., concurring).

6

Jackson Constr., 100 P.3d at 1217.
3

With this standard in mind, the Court considers Plaintiffs’ Motion. The Affidavit of
Plaintiffs’ Counsel states that his office delivered a Summons and Complaint to be served on
Defendants at their last known address. Service was attempted twice, but was unsuccessful.
Counsel states that “the present residence address of the Defendants, Michelle Sterling and
Sterling Style Academy, is unknown due to Ms. Sterling’s transient nature and personal service
cannot be obtained.”7
The Court finds that the evidence presented in Plaintiffs’ Motion falls short of what is
required to allow service by publication under Utah law. According to their Motion, Plaintiffs
have only attempted service at Defendants’ last known address. Plaintiffs do not describe any
other acts taken to serve or locate Defendants. Plaintiffs make the conclusory statement that
personal service cannot be obtained, but have not provided the Court with sufficient information
to support this conclusion. Therefore, the Court is unable to grant the Motion at this time.
III. CONCLUSION
It is therefore
ORDERED that Plaintiffs’ Ex Parte Motion for Order Allowing Service by Publication
and Extending Time for Service (Docket No. 9) is DENIED WITHOUT PREJUDICE.
DATED January 22, 2013.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

7

Docket No 9-1, ¶ 4.
4