MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO ALLOW SERVICE BY PUBLICATION AND CERTIFIED MAIL WITHOUT PREJUDICE and ALLOWING PLAINTIFF TO RENEW MOTION ON OR BEFORE SEPTEMBER 27, 2010
THIS MATTER comes before the Court upon Plaintiff's Motion to Allow Service by Publication and Certified Mail, filed August 9, 2010 (Doc. 37). Responses to the motion have been filed by Defendants Lee Eaton, the Village of Milan Police Department (Doc. 39), the City of Grants, Jason Fank and Jessie Nieto (Doc. 41). Having considered the parties' briefs and the applicable law, I find that Plaintiff's motion is well-taken in part only, and for that reason the motion will be denied without prejudice. The Court will also allow Plaintiff to renew the motion within a certain period of time, after which, the motion will be denied in its entirety with prejudice.
This motion comes about as a result of Plaintiff's unsuccessful efforts to serve Shane Harger, one of the named Defendants in this lawsuit. Plaintiff filed the complaint in this action on January 15, 2010. Under Fed.R.Civ. P. 4(m), Plaintiff had 120 days to serve Defendants, making the final date for service May 15, 2010. Plaintiff's counsel states that he requested and received a 30-day extension for service of the remaining Defendants until June 21, 2010.
Defendant Harger was employed as a law enforcement officer with the Village of Milan Police Department. At the end of his probationary period with his employer, the Village of Milan ("the Village"), Defendant Harger was not offered full-time employment. The Village is not aware of Defendant Harger's whereabouts. Plaintiff's attempted service on Mr. Harger in Milan, New Mexico has failed. Counsel has discovered that Defendant Harger moved from the State of New Mexico and there is some reason to believe that Mr. Harger may be in Louisiana. See Mot., Doc. 37-1 and 37-2 (Affidavits of Vigil and Schobey). Plaintiff now seeks a further extension of 45 days in which to locate and effect service upon Defendant Harger, this time by publication and First Class mail, pursuant to the rules of service under New Mexico state law, NMRA 01-004(J), (K) and (L). All other Defendants in this case have been served.
Rule 4(e) of the Federal Rules of Civil Procedure provides alternative methods of service if the individual is located in the United States. Services of process may be effected by: (a) delivering a copy of the summons and complaint to the individual personally; (b) leaving a copy of the summons and complaint at the individual's residence "or usual place of abode" with someone "of suitable age and discretion who resides there;" or (c) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive same.
Fed.R.Civ.P. 4(e)(2). Service of process may also be effected in accordance with the law of the state where the district court is located (i.e., where the suit is filed) or the law of the state where service of process is to be made. See Fed.R.Civ.P. 4(e)(1).
In this case, service according to state law would potentially involve service of process rules governing New Mexico state district courts and Louisiana district courts. The rule governing service of process on individuals applicable to New Mexico is found at NMRA 1-004(F), which sets out sequential methods of service. Under NMRA 01-004(J), service by publication is allowed upon a showing by affidavit that "service cannot reasonably be made. . . ." In such cases, the Court may order service "by any method or combination of methods, including publication, that is reasonably calculated . . . to apprise the defendant of the existence and pendency of the action and afford a reasonable opportunity to appear and defend."
I. Whether an Extension of Time is Warranted
"The preliminary inquiry to be made under Rule 4(m), which sets out time limits for service, is whether the plaintiff has shown good cause for the failure to timely effect service." Espinoza v. United States, 52 F.3d 838, 841 (10th Cir.1995) (quoted in Sanders v. Southwestern Bell Telephone, L.P., 544 F.3d 1101, 1111 (10th Cir. 2008)). "If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted." Id.
Good cause requires at least a showing of good faith and a reasonable basis, beyond the plaintiff's control, for failing to comply with the time specified for service under the federal rules. See Lepone-Dempsey v. Carroll County Com'rs 476 F.3d 1277, 1281 (11th Cir. 2007) (good cause exists "only when some outside factor[,] such as reliance on faulty advice, rather than inadvertence or negligence, prevented service."). Even where "good cause" is not shown, it is up to the Court's discretion whether to dismiss or permit a further extension. Id. at 1282. Even so, there are limits to the discretion courts will exercise, particularly when considering such factors as a statute of limitations bar, prejudice to the defendant and actual notice of a lawsuit. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007).
Plaintiff has submitted affidavits attesting to multiple attempts to locate and serve Defendant Harger. There is good cause to afford Plaintiff an extension of time in which to effect service. The problem here, however, is that Plaintiff has not submitted adequate information for the Court to determine if service by publication is warranted.
II. Whether the Court Should Allow Service by Publication
Defendants oppose Plaintiff's request to effect service on Defendant Harger by publication. Defendants contend that Plaintiff has provided no specific factual information regarding what steps were taken to serve him in accordance with any of the provisions in NMRA 1-004(E) and (F) and that there is no evidence that Defendant Harger is attempting to ...