United States District Court, D. New Mexico
December 19, 2016
NEVADA GENERAL INSURANCE COMPANY, Plaintiff,
MICHELLE PROVENCIO A.K.A. MICHELLE BACA, and ABELINO ROMERO, Defendants.
MEMORANDUM OPINION AND ORDER ALLOWING SERVICE BY
MATTER comes before the Court on Plaintiff's Motion to
Allow Service by Publication (Doc. 54), filed
December 1, 2016. Defendant Michelle Provencio, a.k.a.
Michelle Baca, for whom Plaintiff seeks permission to serve
by publication, has not yet been served with the Complaint in
this matter; therefore, no response to the motion is
necessary. Having reviewed the motion and the relevant
authorities, the Court finds that the motion is well-taken
and will be granted.
motion, Plaintiff details various efforts that it has made to
locate and personally serve Defendant Michelle Provencio.
Doc. 54. It asserts that Defendant Michelle Provencio has
intentionally concealed herself, and requests permission to
serve her by publication. Id.
is no express provision for service by publication under the
Federal Rules of Civil Procedure. Yet Federal Rule of Civil
Procedure 4(e)(1) allows for service to be effected on a
defendant in a judicial district of the United States by
following “state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is
made.” Fed.R.Civ.P. 4(e)(1). Thus, Plaintiffs must
satisfy the service provisions set forth by New Mexico law in
order to serve Defendant Michelle Provencio by publication.
Mexico Rule of Civil Procedure 1-004(J) and (K) provide for
service by publication. According to case law, however, this
method of service is generally limited to in rem or
quasi in rem actions. See Pope v. Lydick Roofing
Co. of Albuquerque, 472 P.2d 375, 377 (1970). Here,
Plaintiff has filed a Complaint for Declaratory Judgment,
asserting that it has named as defendants all persons or
entities that may be affected by the requested declaration.
Doc. 1 at 1.
action arises from an August 25, 2014 accident involving a
2000 Chevrolet Malibu, which was owned and insured by
Defendant Abelino Romeo. Id. at 3. The Malibu, which
Defendant Daniel Romero was driving at the time of the
accident, struck multiple cars following a high speed chase
by law enforcement. Id. at 4. Plaintiff asserts,
upon information and belief, that Defendant Michelle
Provencio was a passenger in the Malibu and that she was, at
the time of the collision, the victim of an ongoing
kidnapping by Defendant Daniel Romero. Id. at 3-4.
Plaintiff seeks a declaration that as to the incident, there
is no coverage under the policy insuring the Malibu.
Id. at 9-10.
Court's view, this is not a straightforward in
personam action, as would be an action for monetary
damages. An argument could at least be made that the
Court's jurisdiction should be considered quasi in
rem - that is, jurisdiction over a person based on that
person's interest in property located within the
Court's territory. See SR Int'l. Bus. Ins. Co.
LTD v. World Trade Center Props., LLC, 445 F.Supp.2d 356
(S.D.N.Y. Aug. 11, 2006) (noting one party's argument
that the court had jurisdiction over a res,
i.e. the insurance proceeds available to the
insureds); Nat'l Specialty Ins. Co. v. Advanced Cargo
Transp., Inc., No. 14cv1417, 2014 WL 6473975 (M.D. Penn.
Nov. 19, 2014) (considering, upon a motion for service by
publication, whether an action seeking a declaratory judgment
as to an insurer's coverage obligations could be
considered a quasi-in-rem action); Cameron v.
Penn Mut. Life Ins. Co., 161 A. 55 (N.J. Ch. June 14,
1932) (concluding that an action to reform a life insurance
policy was quasi-in-rem because the policy, or the
Res, was “in the possession of the complaint and within
the control of the court”); Perry v. Young,
182 S.W. 577 (Tenn. 1916) (classifying an action for
reformation of a life insurance policy as a
quasi-in-rem action and permitting service on a
non-resident defendant by publication).
to the Supreme Court, the test for deciding whether an action
is quasi in rem is whether the judgment sought will
affect the interests of particular persons in designated
property. Hanson v. Denckla, 357 U.S. 235, 246
(1957). The test, however, “does not turn upon whether
the relief prayed for seeks to control defendants'
conduct, although in a Quasi in rem action a defendant may be
preliminarily restrained from engaging in certain activities
with respect to the Res.” Insurance Co. of North
America v. Allied Crude Vegetable Oil Refining Corp.,
215 A.2d 579, 584 ( N.J.Super. Ct. Ch. Div. 1965).
courts have reasoned that actions for rescission of an
insurance policy, declaratory judgment as to coverage for an
insurance policy, or interpleader of proceeds under an
insurance policy, are not quasi-in-rem actions, even
though they “do not seek a money judgment from the
defendant or an order for him to do or refrain from doing any
act.” See, e.g., Allied Crude Vegetable Oil
Refining Corp., 215 A.2d at 584-85 (collecting cases).
In Allied Crude Vegetable Oil Refining Corp., for
example, the court determined that an action for rescission
of an insurance policy was an in personam action
rather than a quasi-in-rem action, reasoning that a
court “does not acquire jurisdiction over an intangible
[e.g., an insurance policy] by the presence within the state
of a writing evidencing it.” Id. at 585. The
court explained that “[j]urisdiction over an intangible
can arise only from power over the persons whose
relationships are the source of the rights and
obligations.” Id. at 530 (citing Estin v.
Estin, 334 U.S. 541, 548 (1948)).
in National Specialty Ins. Co., the court concluded
that an insurance company's declaratory judgment action
to determine coverage obligations under a liability policy
was in personam rather than quasi in rem,
because it did not seek to resolve a dispute as to the title
to the policy or its proceeds but instead a declaration that
the insurer had satisfied its contractual obligations to
defend and indemnify its insureds. 2014 WL 6473975 at *4;
see also SR Int'l Bus. Ins. Co. Ltd. v. World Trade
Center Props., LLC, 445 F.Supp.2d 356 (S.D.N.Y. 2006)
(rejecting an argument that insurance proceeds available to
the insureds in coverage litigation constituted a
res over which the court had jurisdiction and noting
that it only considered insurance proceeds to be a
res when they were deposited with the court;
otherwise, suits involving insurance coverage and insurance
proceeds are simply in personam actions).
contrast, other courts have held that when a plaintiff
seeking resolution of an insurance dispute files an insurance
policy along with a complaint, the court gains “control
of the res” and has the ability to settle the status
and rights of the parties with respect to that policy through
quasi-in-rem jurisdiction. See, e.g.,
Perry, 182 S.W. at 578; Cameron, 161 A. at
the Court acknowledges that the law in this jurisdiction is
unsettled but declines to resolve the issue of whether the
instant declaratory judgment action qualifies as a
quasi-in-rem action. The Court is satisfied that an
applicable exception within New Mexico law permits Plaintiff
to serve Defendant Michelle Provencio by publication, even
assuming this is an in personam action.
1-004(J) NMRA, New Mexico Rules of Civil Procedure for
District Courts, provides
[u]pon motion, without notice, and showing by affidavit that
service cannot reasonably be made as provided by this rule,
the court may order service by any method or combination of
methods, including publication, that is reasonably
calculated under all of the circumstances to apprise the
defendant of the existence and pendency of the action and
afford a reasonable opportunity to appear and defend.
NMRA 1-004(J) (emphasis added). While service by publication
is generally limited to in rem or quasi in
rem actions, see Pope, 472 P.2d at 377, the New
Mexico courts make an exception for an in personam
case in which “the defendant, being aware that civil
action may be instituted against [her], attempts to conceal
[herself] to avoid service of process.” Clark v.
LeBlanc, 593 P.2d 1075, 1076 (N.M. 1979). This exception
is premised upon the fact that, in concealing, herself a
party renders personal service or process impossible.
Id. According to the New Mexico Supreme Court, a
party's act of purposefully concealing their whereabouts
“constitutes a waiver of notice of the proceedings
sought to be avoided.” Id. In order to permit
service by publication on the basis of evasion, the Court
must make a finding of fact that the defendant intentionally
concealed herself. See Edmonds v. Martinez, 215 P.3d
62 (N.M. Ct. App. 2009).
affidavit provided by Tamra Romo, a paralegal working for the
Law Offices of Bruce S. McDonald, Ms. Romo indicates that she
attempted to determine Defendant Michelle Provencio's
whereabouts through various means, including through
addresses provided in the August 25, 2014 police reports,
attempting personal service at these two addresses, an IPRA
request for documents from the Albuquerque Police Department,
a Facebook search, and an Accurint search. Doc. 54.
of the police reports attached to Plaintiff's motion
reveals that the sole passenger in the vehicle driven by
Defendant Daniel Romero at the time of the August 25, 2014
accident provided the name “Michelle Provencio”
and the address of “6180 Sequoia Rd. NW, Albuquerque,
NM 87120” during the accident investigation.
Doc. 54-3 at 5. In contrast, that same person on the
same day while in the hospital gave the name “Michelle
Baca” and the address of “123 La Ladera, Los
Lunas, NM 87031” during the kidnapping
investigation. Doc. 54-4 at 1. A comparison of the
police reports for these two incidents reveals that there was
only one passenger in the vehicle driven by Defendant Daniel
Romero at the time of the kidnapping and the auto accident.
Compare Doc. 54-3 with 54-4.
has attempted to serve Defendant Michelle Provencio at both
addresses identified in the police reports. Doc. 54-2 at 2.
While there was a “Michele Provencio” present and
personally served at 6180 Sequoia Rd., she was not Defendant
Michelle Provencio, the victim of the August 25, 2014
kidnapping. Doc. 54-2 at 2; Doc. 54-5 at 1.
Moreover, the gentleman who lived at the 123 La Ladera
address explained to the process server that he had lived
there for ten (10) years and that Defendant Michelle
Provencio, or Michelle Baca, had never lived there during
that time. Doc. 54-2 at ¶ 14.
Defendant Michelle Provencio provided different names and
addresses to investigators of the August 25, 2014 accident
and kidnapping, she also provided different birthdates.
During the kidnapping investigation, “Michelle Baca,
” as she referred to herself in that context, told law
enforcement that her birthdate was January 17, 1988. Doc.
54-4 at 14. According to police reports, however, a
“search of her purse later revealed a drivers [sic]
license belonging to her identifying her as Michelle Baca
has also turned to social media in an effort to locate the
defendant. According to Ms. Romo, Defendant Michelle
Provencio's Facebook Page, which contains photographs
that are “similar to the photographs of the victim that
were provided in [response to Plaintiff's] IPRA Request,
” does not provide a current home or work address,
though it does indicate that she lives in the Albuquerque
area. Doc. 54-2 at ¶ 25. Ms. Romo states that Defendant
Michelle Provencio's Facebook Page provides yet a
different birthDated: February 27, 1976. Doc. 54-2
at 3. Finally, a photocopy of the drivers' license of
“Michele Provencio, ” the actual resident of 6180
Sequoia Rd. who turned out not to be Defendant Michelle
Provencio, shows that “Michele Provencio's”
birthdate is November 20, 1967. Doc. 54-5 at 1.
that she provided different names, birthdates, and addresses
during the course of the accident and kidnapping
investigations, the Court finds that Defendant Michelle
Provencio deliberately concealed her identity and whereabouts
at the time of the underlying incident. Most significantly,
she did not actually reside at either address that she
provided to law enforcement. Whether Defendant Michelle
Provencio was motivated by a failure to avoid service of
process in anticipated litigation or by some other reason,
her intentional actions rendered personal service of process
impossible for Plaintiff, even after making due inquiry.
Under these circumstances, the Court is satisfied that this
case is one that is properly excepted from the general rule
that service by publication is unavailable for in
personam actions. See Clark, 593 P.2d at 1076.
addition to demonstrating that Defendant Michelle Provencio
has deliberately concealed herself, Plaintiff has also
complied with the other requirements of New Mexico Rule of
Civil Procedure for District Courts 1-004(J) and (K). It has
provided the requisite proposed notice to be published in a
newspaper of general publication within Bernalillo County as
well as an affidavit establishing that personal service
cannot reasonably be made. See Docs. 54-2 and
such, service by publication shall be made, using the notice
proposed by Plaintiff, in a newspaper of general circulation
in Bernalillo County once each week for three consecutive
IT IS HEREBY ORDERED that Plaintiffs' Motion to Allow
Service by Publication (Doc. 54) is granted.