Falcon Cliff, LLC v. Wykoff Environmental Consulting ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Falcon Cliff, LLC, a Delaware limited Case No. 2:24-cv-00694-RFB-DJA 6 liability company, 7 Plaintiff, Order 8 v. 9 Wycoff Environmental Consulting, LLC, a Nevada limited liability company; Jenny 10 Wycoff, an individual; et al., 11 Defendants. 12 13 Before the Court is Plaintiff’s ex parte motion to serve Defendants by way of substitute 14 service. (ECF No. 11). Because the Court finds that Plaintiff’s proposed alternative service 15 methods are reasonably calculated to provide Defendants with notice and an opportunity to 16 respond, it grants the motion. 17 I. Legal standard. 18 The Constitution does not require any particular means of service of process. Rio Props., 19 Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1017 (9th Cir. 2002) (citing Mullane v. Central 20 Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). It requires only that service “be 21 reasonably calculated to provide notice and an opportunity to respond.” Id. Service of process is 22 governed by Rule 4 of the Federal Rules of Civil Procedure. A federal court lacks jurisdiction 23 over a defendant unless the defendant has been properly served under Rule 4. Direct Mail 24 Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citation 25 omitted). Rule 4, however, “is a flexible rule that should be liberally construed so long as a party 26 receives sufficient notice of the complaint.” Id. “[W]ithout substantial compliance with Rule 4,” 27 “neither actual notice nor simply naming the defendant in the complaint will provide personal 1 Federal Rule of Civil Procedure 4(e)(1) provides that an individual within a judicial 2 district of the United States may be served by “following state law for serving a summons in an 3 action brought in courts of general jurisdiction in the state where the district court is located or 4 where service is made.” Federal Rule of Civil Procedure 4(h) provides that a corporation, 5 partnership, or association located in a judicial district of the United States may be served in the 6 manner prescribed by Rule 4(e)(1) for serving an individual or by delivering a copy of the 7 summons and of the complaint to an officer, a managing or general agent, or any other agent 8 authorized by law to receive service of process. Under Nevada Rule of Civil Procedure 4.2(c)(1) 9 a Nevada entity may be served by delivering a copy of the summons and complaint to the 10 registered agent, any officer or director, or any manager of a manager-managed limited liability 11 company. 12 Under Nevada Rule of Civil Procedure 4.4(b)(1), a plaintiff may serve a party through 13 alternative means if the methods of service provided for in Rules 4.2 (service within Nevada), 4.3 14 (service outside Nevada), and 4.4(a) (statutory service) are impracticable. Under Rule 4.4(b)(2), 15 a motion seeking an order for alternative service must provide affidavits, declarations or other 16 evidence demonstrating: 17 (i) the due diligence that the plaintiff undertook to locate and serve the defendant; and 18 (ii) the defendant’s known, or last known contact information including 19 address, phone numbers, email addresses, social media accounts, or other information used to communicate with the defendant… 20 21 The motion must also outline the proposed alternative service method and explain why it 22 comports with due process. Nev. R. Civ. P. 4.4(b)(2)(B). Under Nevada Rule of Civil Procedure 23 4.4(b)(3), if the Court orders alternative service, the plaintiff must also make reasonable efforts to 24 provide additional notice under Rule 4.4(d) and mail a copy of the summons and complaint as 25 well as any order authorizing the alternative service to the defendant’s last-known address. 26 Nevada Rule of Civil Procedure 4.4(d) provides that, in addition to any other service method, the 27 court may order a plaintiff to make reasonable efforts to provide additional notice of the 1 commencement of the action by other methods like certified mail, telephone, voice message, 2 email, social media, “or any other method of communication.” 3 II. Discussion. 4 Plaintiff explains that it has attempted service at the Plaintiff Wycoff Environmental 5 Consulting, LLC (“WEC”) listed on the Nevada Secretary of State website and at WEC’s 6 business address. However, the former was a UPS Store and the latter was a business address not 7 occupied by WEC. Plaintiff also sent a demand letter to jenny@wycoffenvironmental.com and 8 hello@wycoffenvironmental.com, where Defendants receive emails, and received a confirmation 9 of receipt, indicating that Defendants were aware of the suit. 10 WEC’s registered agent and managing member is Defendant Jenny Wycoff, with a street 11 address of 5352 Magnolia Crossing St., Las Vegas, NV 89148. Plaintiff has attempted to serve 12 both WEC and Wycoff at this address on multiple occasions. However, Plaintiff’s process server 13 has been met with attempts by the occupants of the residence to evade service. 14 Plaintiff proposes the following methods of alternate service on Defendants: 15 (1) affixing a copy of the complaint and summons to the front door of 5352 Magnolia Crossing St., Las Vegas, NV 89148, the address 16 for WEC’s registered agent and Wycoff as managing member; 17 (2) emailing a copy of the complaint and summons to Jenny Wycoff at jenny@wycoffenvironmental.com and 18 hello@wycoffenvironmental.com, which have been confirmed as valid email addresses; (3) mailing a copy of the complaint and 19 summons via certified mail, return receipt requested to 5352 Magnolia Crossing St., Las Vegas, NV 89148; and (4) by publishing 20 the summons and complaint in Nevada Legal News, which has 21 circulation in Southern Nevada where Defendants are located. 22 (ECF No. 11 at 4). 23 The Court finds that Plaintiff’s proposed methods of service are reasonably calculated to 24 provide Defendants with notice and an opportunity to respond and that they comply with the 25 alternative means of service identified by the Federal and Nevada Rules of Civil Procedure. 26 Plaintiff has demonstrated its due diligence in locating and serving the Defendants and has 27 demonstrated that no other means of personal service are possible. The Court will also require 1 Plaintiff to mail a copy of this order to Defendants’ last known addresses. See Nev. R. Civ. P. 2 4.4(b)(3)(B). 3 4 IT IS THEREFORE ORDERED that Plaintiff’s ex parte motion for leave to serve 5 Defendants by way of substitute service (ECF No. 11) is granted. 6 IT IS FURTHER ORDERED that Plaintiff must serve Defendants by the methods it 7 outlines in its ex parte motion. 8 IT IS FURTHER ORDERED that Plaintiff must also mail a copy of this order to 9 Defendants’ last known addresses. 10 11 DATED: July 15, 2024 12 DANIEL J. ALBREGTS 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27