Mendoza v. Giordano ( 2023 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 JOSE LUIS MENDOZA, et al., Case No. 2:23-cv-00376-RFB-NJK 9 Plaintiff(s), Order 10 v. [Docket No. 11] 11 ANGELO JOSEPH GIORDANO, et al., 12 Defendant(s). 13 Pending before the Court is Plaintiffs’ motion for service by publication. Docket No. 11.1 14 The motion is properly decided without a hearing. See Local Rule 78-1. For the reasons discussed 15 more fully below, the motion is hereby DENIED. 16 I. MANNER OF FILING 17 Counsel filed the instant motion as ex parte with restricted access on the docket. See 18 Docket No. 11. No showing has been made to support any such restriction from public viewing. 19 Accordingly, the Clerk’s Office is INSTRUCTED to remove the restrictions from the motion such 20 that it appears publicly on the docket. 21 II. MOTION FOR SERVICE BY PUBLICATION 22 Plaintiffs seek an order that they be allowed to effectuate service by publication. Service 23 is to be provided pursuant to the law of the forum state, or in which service is made. See Fed. R. 24 Civ. P. 4(e)(1). Nevada law permits service by publication if the plaintiff cannot, after due 25 diligence, locate the defendant. See Nev. R. Civ. P. 4.4(c)(1)(a). Due diligence is that which is 26 1 Seeking relief in federal court requires the filing of moving papers with meaningfully 27 developed argument. Kor Media Grp., LLC v. Green, 294 F.R.D. 579, 582 n.3 (D. Nev. 2013). Despite a prior warning on that front, Docket No. 10, the motion continues to be poorly developed. 28 Counsel must do better moving forward. 1} appropriate to accomplish actual notice and is reasonably calculated to do so. See Abreu v. Gilmer, 115 Nev. 308, 313 (1999) (citing Parker v. Ross, 117 Utah 417, 217 P.2d 373, 379 (Utah 1950)). Courts may consider the number of attempts made to serve the defendant at his residence and other 4] methods of locating the defendant, such as consulting public directories or other databases and contacting family members. See, e.g., Price v. Dunn, 787 P.2d 786, 786-87; Abreu 115 Nev. at 313; McNair v. Rivera, 110 Nev. 463, 874 P.2d 1240, 1241 (Nev. 1994). Service by publication 7| is generally disfavored because substituted service implicates a defendant’s constitutional right to 8] due process. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15 9 (1950); Trustees of the Nev. Resort Assoc.—Int’l Alliance of Theatrical Stage Employees & Moving Picture Machine Operators v. Alumifax, Inc., 2013 U.S. Dist. Lexis. 106456, *2 (D. Nev. 11} July 29, 2013). 12 In this case, Plaintiffs attempted service one time on Defendant Giordano at his home, but 13] the process server was told that he sold the house and moved. Docket No. 11 at 5. Plaintiffs 14] identify no efforts to locate Defendant Giordano’s current whereabouts.” Plaintiffs attempted 15] service one time on Defendant Mexitalia Family Holdings, but the process server noted the 16] location is now vacant. Docket No. 11 at 9. Plaintiffs identify no other efforts to locate the 17|| corporate defendant (or its officers) to effectuate service by traditional means. 18 In short, a single service attempt has been made as to each Defendant, which the Court 19] finds to be insufficient diligence to warrant service by publication. 20) 1. CONCLUSION 21 For the reasons discussed above, the motion for service by publication is DENIED. 22 IT IS SO ORDERED. 23 Dated: June 14, 2023 24 4 x Nancy J. Koppe 25 United States Magistrate Judge 26 27 ? Counsel attests that he “do[es] not know any other address where Defendant has lived since” he moved. Docket No. 11 at 3. Such representation simply begs the question of what efforts 28]| (if any) counsel has made to obtain such information.