Eldering v. Dillard ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 CHARLES ELDERING, et al., Case No.: 2:19-cv-00772-JAD-NJK 12 Plaintiff(s), ORDER 13 v. [Docket No. 5] 14 GLENN DILLARD, et al., 15 Defendant(s). 16 Pending before the Court is Plaintiffs’ motion for an extension of time to serve Defendants 17 and request to serve Defendants by publication. Docket No. 5. The motion is properly resolved 18 without a hearing. See Local Rule 78-1. For the reasons discussed below, Plaintiffs’ motion, 19 Docket No. 5, is GRANTED. 20 I. Discussion 21 A. Extend Time for Service 22 Where good cause is shown, the time for serving the complaint is extended for an 23 appropriate period. See Fed. R. Civ. P. 4(m). “As a general matter, a showing of good cause 24 requires more than simple inadvertence, mistake of counsel, or ignorance of the Rules of Civil 25 Procedure.” Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Monroe, 2011 WL 383807, *1 (D. Nev. 26 Feb. 2, 2011). 27 28 1 Here, the Court finds that Plaintiffs have diligently attempted to serve Defendants, 2 including reviewing their communications with Defendant Rio Wild,1 researching where the 3 company is domiciled, and reviewing state business entity records. Docket No. 5 at 2. Plaintiffs 4 additionally hired a process server and a private investigator, who each conducted research, 5 surveillance, and attempted service multiple times, including at the residences of Defendant Glenn 6 Dillard’s parents and ex-wife, which are residences associated with Defendant Dillard. Id. at 7 3-5. The private investigator also investigated a separate property that was Defendant 8 Dillard’s last-known address; however, this property appeared empty and for sale. Id. at 4. 9 Accordingly, the Court finds that good cause exists to extend the time for service. The 10 Court GRANTS Plaintiffs’ request to extend service. Plaintiffs must serve Defendants no later 11 than October 15, 2019. 12 B. Service by Publication 13 Plaintiffs additionally ask the Court for an order to serve Defendants by publication. 14 Docket No. 5 at 5. Service by publication is generally disfavored because substituted service 15 implicates a defendant’s constitutional right to due process. See Mullane v. Central Hanover Bank 16 & Trust Co., 339 U.S. 306, 314-15; see also Trustees of the Nev. Resort Assoc.—Int’l Alliance of 17 Theatrical Stage Employees & Moving Picture Machine Operators v. Alumifax, Inc., 2013 U.S. 18 Dist. Lexis 106456, *2 (D. Nev. July 29, 2013). 19 Service is to be provided pursuant to the law of the forum state, or in which service is made. 20 See Fed. R. Civ. P. 4(e)(1). Nevada law permits service by publication if the plaintiff cannot, after 21 due diligence, locate the defendant. Nev. R. Civ. P. 4.4(c)(1)(a). Due diligence is that which is 22 appropriate to accomplish actual notice and is reasonably calculated to do so. See Abreu v. Gilmer, 23 115 Nev. 308, 313 (1999) (citing Parker v. Ross, 117 Utah 417, 217 P.2d 373, 379 (Utah 1950)). 24 Courts may consider the number of attempts made to serve the defendant at his residence and other 25 methods of locating the defendant, such as consulting public directories and family members. See 26 Price v. Dunn, 787 P.2d 786, 786-787; see also Abreu, 115 Nev. at 313-314. The basic rule is that 27 28 1 Defendant Dillard identifies himself as Rio Wild’s CEO. Docket No. 5 at 2. 1 all reasonable means of locating and serving the defendant should be employed. See Price, 787 2 P.2d at 787; see also Paws Up Ranch, LLC v. Green, 2014 U.S. Dist. Lexis 93202, at *3 (D. Nev. 3 July 9, 2014). 4 Here, the Court finds that Plaintiffs have diligently attempted to serve Defendants on 5 multiple occasions at multiple addresses. Docket No. 5 at 2-6. Plaintiffs undertook a detailed 6 review of their communications with Defendants and conducted research at length to evaluate 7 where the company was domiciled, including reviewing multiple states’ business records. Id. at 8 2. Additionally, Plaintiffs hired a process server who reviewed records, visited the addresses of 9 Defendant Dillard’s parents and ex-wife on several occasions, investigated Defendant Dillard’s 10 last-known address, and attempted to call Defendants. Id. at 3-5, 7-8. Further, Plaintiffs hired a 11 private investigator who reviewed the information, searched public records, and visited and 12 surveilled the same locations multiple times. Id. at 5-6. Finally, Plaintiffs provided the Court with 13 the proposed language of the summons and a newspaper in which the summons should be 14 published. Id. at 7-8; see also Docket No. 5-4 at 2. 15 The Court finds that these circumstances justify allowing service by publication. 16 III. Conclusion 17 Accordingly, the Court GRANTS Plaintiffs’ motion to extend the deadline to effectuate 18 service. Docket No. 5. The deadline to serve Defendants is extended to October 15, 2019. Further, 19 the Court GRANTS Plaintiffs’ request to serve Defendants by publication. Plaintiffs SHALL 20 comply with the requirements of Nevada Rule of Civil Procedure 4 and SHALL: 21 (i) Serve Defendants by publication in the Las Vegas Review Journal, a newspaper of general circulation in Nevada, on a weekly basis for a period of four weeks. 22 (ii) After publication is complete, Plaintiffs shall file an Affidavit of Publication from 23 the Las Vegas Review Journal. 24 IT IS SO ORDERED. 25 Dated: August 12, 2019 26 ______________________________ Nancy J. Koppe 27 United States Magistrate Judge 28