Essentia Insurance Company v. Uriostegui ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Essentia Insurance Company, No. CV-20-01758-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Juan Meza Uriostegui, et al., 13 Defendants. 14 15 Before the Court is Plaintiff’s Motion to Allow Service by Alternative Means and 16 to Extend Time for Service of Process (the “Motion”). (Doc. 9.) Plaintiff believes 17 Defendants are evading service. (Id. at 2.) As a result, Plaintiff requests an additional 18 90 days to effectuate service of process on Defendants and further seeks alternative service 19 as permitted under the Arizona Rules of Civil Procedure. (Id. at 1–2.) 20 Rule 4(e)(1) of the Federal Rules of Civil Procedure provides that individuals may 21 be served by “following state law for serving a summons in an action brought in courts of 22 general jurisdiction in the state where the district court is located . . . .” Fed. R. Civ. 23 P. 4(e)(1). Arizona law enumerates three sufficient methods to serve most individuals: 24 (1) delivering a copy of the summons and the pleading to that 25 individual personally; (2) leaving a copy of each at that individual’s dwelling or usual place of abode with someone of 26 suitable age and discretion who resides there; or (3) delivering a copy of each to an agent authorized by appointment or by law 27 to receive service of process. 28 1 Ariz. R. Civ. P. 4.1(d). If a moving party shows service by those means is “impracticable,” 2 the Court may “order that service [] be accomplished in another manner.” Id. 4.1(k)(1). 3 “There are no Arizona cases interpreting the meaning of ‘impracticable’ as that term 4 is used in [Rule 4.1(k)].” Blair v. Burgener, 226 Ariz. 213, 218 (App. 2010) (formerly 5 Rule 4.1(m)). In Blair v. Burgener, the Arizona Court of Appeals determined the standard 6 of impracticability requires something less than the “due diligence” standard. Id. at 218 7 (“[T]he showing for alternative service requires something less than a complete inability 8 to serve the defendant because the defendant’s current address is unknown or the defendant 9 completely has avoided service of process.”). Applying that standard, the court deemed 10 personal service in that case to be impracticable because the plaintiff attempted service at 11 the defendants’ place of business and residence at various times on five different days and 12 the process server visited the defendants’ place of business on seven additional days but 13 the defendants were not present. Id. at 219. In addition, the court “approvingly cited a New 14 York case on a similar service issue,” in which “the New York court concluded that three 15 attempts at service on three different days constituted sufficient efforts to warrant 16 alternative means of service.” BMO Harris Bank, N.A. v. D.R.C. Invests., L.L.C., 2013 WL 17 4804482, *4 (D. Ariz. Sept. 9, 2013) (citing Blair, 226 Ariz. at 218). 18 Plaintiff is seeking this Court’s permissions to serve Defendants by “certified mail 19 and affixing a Summons and Complaint to the front door of Defendants’ residence” or, 20 alternatively, by publication. (Doc. 9 at 2.) Plaintiff argues service by an alternative method 21 is necessary because “personal service upon Defendants has proven impracticable” and “it 22 appears they are purposefully evading service.” (Id.) 23 The Court finds that Plaintiff has made the requisite showing to justify alternative 24 service. Plaintiff, in this case, is seeking declaratory relief against Defendants after they 25 demanded coverage from Plaintiff following an automobile accident. (Doc. 9 at 2.) The 26 Motion explains that based on a police report, correspondence authored by Defendants’ 27 former attorney, and Defendants’ insurance application, Plaintiff believes that Defendants 28 reside at an address specified in the Motion. (Id. at 1–2.) Plaintiff “employed . . . a private 1 || process server,” who unsuccessfully “attempted to effect service of process four times upon 2|| Defendants” at that residence. (/d. at 2.) Certificates of due diligence, attached to the || Motion, indicate that service was attempted at various times of the day on four different 4|| days, that vehicles were present when service was attempted, and on one occasion, outside 5 || lights were on and vehicles were present but there was no answer at the residence. (/d., 6 || Ex. 1.) Because the “impracticable” requirement of Rule 4.1(k) is satisfied, service by an 7|| alternative method is allowed. 8 In addition, Rule 4(m) of the Federal Rules of Civil Procedure requires a plaintiff to 9|| effectuate service of process within 90 days after filing the complaint. But, “if the plaintiff || shows good cause for the failure, the court must extend the time for service for an 11 || appropriate period.” Fed. R. Civ. P. 4(m). For the reasons discussed above, the Court finds 12 || good cause exists. But, because the Court is permitting service by an alternative method, 13 || Plaintiffs request for extension will only be granted to the extent of 45 days. 14 Accordingly, 15 IT IS ORDERED granting Plaintiff's Motion to Allow Service by Alternative 16|| Means and to Extend Time for Service of Process (Doc. 9). Plaintiff's deadline to serve 17 || Defendants is extended to January 22, 2021. Plaintiff may serve Defendants, and each of 18 || them, by (1) Certified U.S. mail, and (2) affixing a copy of the Summons, Complaint, and this Order to Defendants’ last-known residential address. 20 IT IS FURTHER ORDERED that Plaintiff's counsel shall file an affidavit upon 21 || completion of service specifying the date and details on which alternative service has been 22 || accomplished. 23 Dated this 7th day of December, 2020. 24 Michal T. Shurde 26 Michael T. Liburdi 27 United States District Judge 28 -3-