Aquatech Corporation v. Mystic Pool Supplies LLC ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Aquatech Corporation dba United Aqua Case No. 2:24-cv-00909-RFB-DJA 6 Group, a Delaware corporation, 7 Plaintiff, Order 8 v. 9 Mystic Pool Supplies, LLC dba Mystic Pool Supplies & Service, a New Jersey limited 10 liability company; Jay Kellers, an individual, 11 Defendants. 12 13 Before the Court is Plaintiff Aquatech Corporation dba United Aqua Group’s 14 (“Aquatech”) motion to enlarge time for service on Defendant Jay Kellers and to serve Kellers by 15 publication. (ECF No. 5). Aquatech asserts that it has already successfully served Defendant 16 Mystic Pool Supplies, LLC dba Mystic Pool Supplies & Service (“Mystic”). (Id.). Because the 17 Court finds that Aquatech has demonstrated good cause to extend the time for service, but has not 18 demonstrated that the periodicals it proposes are reasonably calculated to give Kellers actual 19 notice of the proceedings, it grants the motion in part and denies it in part. 20 I. Service by publication. 21 Service by publication is generally disfavored because substituted service implicates a 22 defendant’s constitutional right to due process. See, e.g., Mullane v. Central Hanover Bank & 23 Trust Co., 339 U.S. 306, 314-15 (1950); Trustees of the Nev. Resort Assoc. v. Alumifax, Inc., 24 2013 U.S. Dist. Lexis. 106456, *2 (D. Nev. July 29, 2013). Service is to be provided under the 25 law of the forum state, or in which service is made. See Fed. R. Civ. P. 4(e)(1). Under Nevada 26 law, the Court may order service by publication if the defendant cannot, after due diligence be 27 found. Nev. R. Civ. P. 4.4(c)(1)(A). The motion seeking publication must, in relevant part, 1 summarizing the claims asserted and the relief sought and including any special statutory 2 requirements” and “suggest one or more newspapers or other periodicals in which the summons 3 should be published that are reasonably calculated to give the defendant actual notice of the 4 proceedings.” Nev. R. Civ. P. 4.4(c)(2)(C)-(D). 5 Due diligence is that which is appropriate to accomplish actual notice and is reasonably 6 calculated to do so. See Abreau v. Gilmer, 115 Nev. 308, 313, 985 F.2d 746, 749-50 (1999) 7 (citing Parker v. Ross, 117 Utah 417, 217 P.2d 373, 379 (Utah 1950)). Courts may consider the 8 number of attempts made to serve the defendant at his residence and other methods of locating 9 the defendant, such as consulting public directories and family members. See, e.g., Price v. 10 Dunn, 106 Nev. 100, 102-04, 787 P.2d 786, 786-87 (Nev. 1990); Abreu, 115 Nev. at 313, 985 11 P.2d at 749-50; McNair v. Rivera, 110 Nev. 463, 464-68, 874 P.2d 1240, 1241-44 (Nev. 1994). 12 In ordering service by publication, the Court must “direct publication to be made in one or more 13 newspapers or other periodicals published in Nevada; in the state, territory, or foreign country 14 where the defendant is believed to be located; or in any combination of locations.” Nev. R. Civ. 15 P. 4.4(c)(4)(A). The Court’s designated locations “must be reasonably calculated to give the 16 defendant actual notice of the proceedings.” Id. 17 While the Court finds that Aquatech has established due diligence in attempting to locate 18 and serve Kellers, it lacks the information to craft the order required by the Nevada Rules. Citing 19 Nevada Rule of Civil Procedure 4.4(c)(4), Aquatech asserts that it will “publish ‘in one or more 20 newspapers or other periodicals published [in]…the state…where the defendant is believed to be 21 located’; the publication should be at least once a week for a period of four weeks; and the 22 process should be mailed to Mr. Keller at his home and office address.” (ECF No. 5 at 4-5). But 23 Aquatech does not: (1) “provide the proposed language of the summons to be used in the 24 publication, briefly summarizing the claims asserted and the relief sought and including any 25 statutory requirements”; (2) “suggest one or more newspapers or other periodicals in which the 26 summons should be published”; or (3) explain why these particular newspapers or periodicals are 27 “reasonably calculated to give the defendant actual notice of the proceedings.” Because 1 publication to be made in one or more newspapers or other periodicals published in…the 2 state…where defendant is believed to be located.” Nor can it meet the mandate that its 3 designated locations “must” be reasonably calculated to give the defendant actual notice of the 4 proceedings. Aquatech’s vague reference to periodicals published in New Jersey, without more, 5 do not give the Court sufficient facts on which to base its order. The Court thus denies 6 Aquatech’s motion in part regarding its request for service by publication without prejudice. 7 II. Extension of time. 8 Courts have broad discretion to extend time for service under Rule 4(m). Efaw v. 9 Williams, 473 F.3d 1038, 1041 (9th Cir. 2003). The 90–day period for service contained in Rule 10 4(m) “operates not as an outer limit subject to reduction, but as an irreducible allowance.” 11 Henderson v. United States, 517 U.S. 654, 661 (1996). “On its face, Rule 4(m) does not tie the 12 hands of the district court after the . . . [90]–day period has expired. Rather, Rule 4(m) explicitly 13 permits a district court to grant an extension of time to serve the complaint after that . . .[90]–day 14 period.” Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). Moreover, the 15 Advisory Committee Notes to Rule 4(m) state that the rule “explicitly provides that the court shall 16 allow additional time if there is good cause for the plaintiff’s failure to effect service in the 17 prescribed . . .[90] days, and authorizes the court to relieve a plaintiff of the consequences of an 18 application of [Rule 4(m)] even if there is no good cause shown.” See Fed. R. Civ. P. 4(m), 19 Advisory Committee Notes, 1993 Amendments. Generally, “good cause” is equated with 20 diligence. See Wright & Miller, Federal Practice and Procedure: Civil 3d § 1337. 21 Aquatech has established that an extension of time is warranted. Despite diligent attempts 22 to serve Kellers, Aquatech still has been unable to serve him. Because the service deadline has 23 passed, an extension is appropriate to give Aquatech the time to attempt service on Keller. The 24 Court thus grants Aquatech’s motion in part regarding its request to extend time for service. 25 26 /// 27 /// 1 IT IS THEREFORE ORDERED that Aquatech’s motion (ECF No. 5) is granted in 2 part and denied in part. It is granted in part regarding Aquatech’s request for additional time 3 for service and the Court extends the service deadline to December 11, 2024. It is denied in part 4 without prejudice regarding Aquatech’s request to serve Kellers by publication. 5 6 DATED: September 6, 2024 7 DANIEL J. ALBREGTS 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27