Cobbs et al v. Clements et al

Filing 10

RULING ON PLAINTIFF'S 9 MOTION for Service by Publication. 9 Motion for service by publication is DENIED. Signed by Judge J. Garvan Murtha on 5/29/2009. (kak)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT KEVIN COBBS and MARLANA FICHTNER, : : : Plaintiffs, : : v. : : DAVID CLEMENTS and : ETHAN THIBAULT, : : Defendants. : ________________________________:

File No. 1:08-CV-244

RULING ON PLAINTIFFS' MOTION FOR SERVICE BY PUBLICATION (Paper 9) The Court issued an Order on April 27, 2009 requesting proof of service of the Complaint as to Ethan Thibault, or an explanation why service has not been made. (Paper 8.) On

May 14, 2009, Plaintiffs responded explaining the sheriffs could not serve Mr. Thibault because he is in Iraq. (Paper 9.)

Plaintiffs' response also included a request to serve Mr. Thibault by publication. Federal Rule of Civil Procedure 4 governs service and provides specifically for service of process on individuals in foreign countries. See Fed. R. Civ. P. 4(f). Rule 4(f) provides

three types of service, none of which is service by publication. Id. Rule 4 also provides a mechanism through which a plaintiff Id. 4(d).

may request waiver of service.

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Federal courts allow service by publication where other means have failed. BP Prods. N. Am., Inc. v. Dagra, 236 F.R.D. "`Where the plaintiff can show that

270, 272 (E.D. Va. 2006).

deliberate avoidance and obstruction by the defendant[] made the giving of notice impossible, statutes and caselaw have allowed substitute notice by mail and by publication' . . . ." Id.

(quoting SEC v. Tome, 833 F.2d 1086, 1092 (2d Cir. 1987)). Plaintiffs have not attempted to serve Mr. Thibault in Iraq or alleged deliberate avoidance and obstruction by Mr. Thibault. Accordingly, the Plaintiffs' motion for service by publication (Paper 9) is DENIED. SO ORDERED. Dated at Brattleboro, in the District of Vermont, this 29th day of May, 2009.

/s/ J. Garvan Murtha Honorable J. Garvan Murtha United States District Judge

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