MaxRelief USA Incorporated v. Maxx Relief ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 MaxRelief USA Incorporated, No. CV-20-08335-PCT-MTL 10 Plaintiff, ORDER 11 v. 12 Maxx Relief, et al., 13 Defendants. 14 15 Before the Court is Plaintiff’s Motion for Alternative Service and Tolling of Time 16 to Serve Complaint. (Doc. 15.) Plaintiff requests an order authorizing alternative service 17 of Defendants Maxx Relief, Terrell D. Link, and Margaret M. Mortazavi by email and first- 18 class mail. (Id. at 1.) 19 I. 20 On December 16, 2020, Plaintiff initiated this lawsuit, alleging trademark 21 infringement and unfair competition claims against Defendants. (Doc. 1.) Plaintiff 22 commissioned a private investigator to identify Defendants’ legal names and addresses. 23 (Doc. 15 at 2.) A skip trace report identified Defendants Link and Mortazavi’s last-known 24 address as a specific residence in Camp Verde, Arizona. (Id.) A process server attempted 25 to serve Defendants at that address on five unsuccessful occasions. (Id.) During those 26 attempts, a neighbor confirmed Defendants Link and Mortazavi reside at the residence, 27 lights were on inside and outside the residence, holiday lights had been put up and later 28 taken down, and multiple vehicles were parked in the garage. (Id. at 2–3.) Plaintiff 1 contends Defendants are “avoid[ing] service.” (Id. at 3.) Thus, Plaintiff moves this Court 2 for an order, pursuant to Rule 4(e) of the Federal Rules of Civil Procedure and Rule 4.1(k) 3 of the Arizona Rules of Civil Procedure, allowing alternative service. 4 II. 5 The Federal Rules of Civil Procedure provide that individuals may be served by 6 “following state law for serving a summons in an action brought in courts of general 7 jurisdiction in the state where the district court is located . . . .” Fed. R. Civ. P. 4(e)(1). 8 Arizona law enumerates several sufficient methods to serve individuals and unincorporated 9 associations. Ariz. R. Civ. P. 4.1(d), (i). If a moving party shows service by those means is 10 “impracticable,” the Court may “order that service [] be accomplished in another manner.” 11 Id. 4.1(k)(1). 12 “There are no Arizona cases interpreting the meaning of ‘impracticable’ as that term 13 is used in [Rule 4.1(k)].” Blair v. Burgener, 226 Ariz. 213, 218 (App. 2010) (formerly 14 Rule 4.1(m)). In Blair, the Arizona Court of Appeals determined the standard of 15 impracticability requires something less than the “due diligence.” Id. at 218 (“[T]he 16 showing for alternative service requires something less than a complete inability to serve 17 the defendant because the defendant’s current address is unknown or the defendant 18 completely has avoided service of process.”). The appellate court deemed personal service 19 to be impracticable in Blair because the plaintiff attempted service at the defendants’ place 20 of business and residence at various times on five different days and visited the defendants’ 21 place of business on seven additional days but the defendants were not present. Id. at 219. 22 In addition, the court “approvingly cited a New York case on a similar service issue,” in 23 which “the New York court concluded that three attempts at service on three different days 24 constituted sufficient efforts to warrant alternative means of service.” BMO Harris Bank, 25 N.A. v. D.R.C. Invests., L.L.C., No. CV-13-1692-PHX-LOA, 2013 WL 4804482, at *4 (D. 26 Ariz. Sept. 9, 2013) (citing Blair, 226 Ariz. at 218). 27 III. 28 In this case, Plaintiff has made the requisite showing to justify alternative service. 1 Based on the skip trace report and a neighbor’s confirmation, Plaintiff believes Defendants 2 Link and Mortazavi reside at a specified residence in Camp Verde, Arizona. (Doc. 15 at 2.) 3 The process server attempted to effectuate service at that address at five various times on 4 four different days. (Id.) And on those occasions, lights were on inside and outside the 5 residence, vehicles were present in the garage, and a neighbor had observed Defendant 6 Link “pulling trash cans” the day before one of the service attempts. (Id. at 2–3.) Thus, the 7 Court finds the “impracticable” requirement of Rule 4.1(k) to be satisfied. 8 Because alternative service of process is appropriate, the Court must determine 9 whether Plaintiff’s proposed method of alternative service comports with “constitutional 10 notions of due process.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th 11 Cir. 2002). Plaintiff’s proposed method of alternative service includes service by first-class 12 mail and email. Under Arizona Rule 4.1(k)(2), if alternative service is allowed, “the serving 13 party must mail the summons, the pleading being served, and any court order authorizing 14 an alternative means of service to the last-known business or residential address of the 15 person being served.” Plaintiff knows Defendants Link and Mortazavi last-known 16 residential address. Thus, there is a strong indication that service by first-class mail would 17 apprise Defendants Link and Mortazavi of the pendency of this action and afford them the 18 opportunity to present their objections. Rio Props. Inc., 284 F.3d at 1016. 19 Plaintiff’s proposed method of service also includes service by email to 20 info@maxxrelief.com, the email address found on Defendant Maxx Relief’s Facebook 21 page. The Ninth Circuit “has held due process requires ‘nothing more’ than service of 22 process by email when that [is] the only means reasonably calculated to apprise the 23 defendant of the lawsuit.” BMO Harris Bank N.A. v. Guthmiller, No. CV-14-00275-PHX- 24 JAT, 2014 WL 2600362, at *3 (D. Ariz. June 10, 2014) (quoting Rio Props. Inc., 284 F.3d 25 at 1018). And courts have allowed alternative service by email when there are other means 26 of service, like mail delivery of process, available. See id. Thus, the Court will grant the 27 Motion. 28 \\\ 1 IV. 2 For the reasons stated, 3 IT IS ORDERED granting Plaintiff's Motion for Alternative Service and tolling 4|| of Time to Serve Complaint (Doc. 15). Plaintiff may serve the Summons, Complaint, and □□ a copy of this Order on Defendants, and each of them, by (1) first-class U.S. mail, 6|| (2) affixing a copy of the Summons, Complaint, and this Order to Defendants’ last-known 7\| residential address, and (3) email. Plaintiff's deadline to serve Defendants by alternative 8 || means is March 5, 2021. 9 IT IS FURTHER ORDERED that Plaintiff’s counsel shall file an affidavit within five (5) days of the completion of service specifying the date and details on which 11 || alternative service has been accomplished. 12 Dated this 3rd day of February, 2021. 13 Micha T. Siburde Michael T. Liburdi 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 -4-