Lively v. Ballard et al

Filing 35

MEMORANDUM OPINION AND ORDER granting in part and denying in part 34 SECOND MOTION by Charles Jason Lively for an Order of Constru[c]tive Service by Publication, or Alternatively, the Provision of Identifying Information for Defendant Underwoo d, and to Extend Time for Service on Defendant Underwood; granting in part said motion insofar as it requests an order of constructive service on Underwood and an extension of the time for service by publication to occur; and denying in part said motion insofar as it requests an order directing the DOC to provide to Plaintiff's counsel certain identifying information for Underwood; the Court will enter a separate Order of Publication reflecting the above ruling. Signed by Judge Thomas E. Johnston on 2/26/2018. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

CHARLES JASON LIVELY,
Plaintiff,
v.

CIVIL ACTION NO. 2:17-cv-03760

WARDEN DAVID BALLARD, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s “Second Motion for an Order of Constru[c]tive
Service by Publication, or Alternatively, the Provision of Identifying Information for Defendant
Underwood, and to Extend Time for Service on Defendant Underwood.” (ECF No. 34.) For the
reasons that follow, the motion is GRANTED IN PART and DENIED IN PART, and the Court
further ORDERS that Plaintiff is authorized to serve Defendant Underwood by publication.
Plaintiff originally filed a motion on October 30, 2017, for additional time to effect service
on two Defendants in this case, (ECF No. 17), along with a motion for order of publication, (ECF
No. 18). The Court granted the first motion, extending the deadline for service as to those
Defendants to February 1, 2018. (ECF No. 20.) The Court further denied without prejudice the
motion for order of publication “with the understanding that Plaintiff may need to refile it after the
additional time has run.” (Id.) During the extended period, Plaintiff effected service on one of
the two Defendants, but Plaintiff still was unable to serve Defendant Justin Underwood
(“Underwood”). The pending motion requests the Court to direct the Clerk to enter an order of

service by publication and, alternatively, to order the West Virginia Division of Corrections
(“DOC”) to provide identifying information for Underwood to aid in effecting service. (See ECF
No. 34 at 1–2.)
According to Federal Rule of Civil Procedure 4(e),
an individual—other than a minor, an incompetent person, or a person whose
waiver has been filed—may be served in a judicial district of the United States by:
(1) 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 . . . .
West Virginia Rule of Civil Procedure 4(e)(1) provides for service by publication if the
plaintiff first files an affidavit stating “[t]hat the plaintiff has used due diligence to ascertain the
residence or whereabouts of the defendant, without effect.” In this context, “‘[d]ue diligence’
means the exercise of a reasonable effort to locate a person’s residence so that notice . . . may be
provided.” Cook v. Duncan, 301 S.E.2d 837, 841 (W. Va. 1983) (citation omitted).
Plaintiff has submitted an affidavit from his counsel in support of the request to serve
Underwood by publication. (ECF No. 34-1 (Milnes Aff.).) Plaintiff’s counsel attests that she
began her search for Underwood’s individual addresses via google.com, peekyou.com, Facebook,
and Westlaw. After identifying several possible individuals with Underwood’s first and last
name, the results were narrowed to two possibilities. An initial summons was sent the day after
the amended complaint was filed in this case, but it was returned unexecuted as it was the wrong
“Justin Underwood.” A second summons was issued by the Court to another address, but it also
was returned unexecuted as the house was vacant. Plaintiff subsequently attempted to acquire
Underwood’s last known address from the DOC, but the provided information involved a bad
address.

Ms. Milnes’ affidavit persuades the Court that Plaintiff has used due diligence to ascertain
Underwood’s whereabouts. Accordingly, Plaintiff’s motion to serve Underwood by publication,
(ECF No. 34), is GRANTED IN PART insofar as it requests an order of constructive service on
Underwood and an extension of the time for service by publication to occur and DENIED IN
PART insofar as it requests an order directing the DOC to provide to Plaintiff’s counsel certain
identifying information for Underwood. The Court will enter a separate Order of Publication
reflecting the above ruling.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

February 26, 2018