United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING SERVICE BY
MATTER comes before the Court on Plaintiff's Motion for
Service by Publication on Defendant David Singer (Doc.
41) and Corrected Exhibit C (Doc. 42). Having
reviewed the Motion and relevant authorities, the Court finds
that the Motion is not well-taken and will be denied without
prejudice at this time.
a copyright infringement action brought by Plaintiff, a
designer and manufacturer of Native American headdresses.
Doc. 35 (Second Amended Complaint) at ¶ 4.
Plaintiff alleges that Defendant David Singer has purchased
infringing headdresses from Defendant Southwest Treasures and
then, in turn, sold those headdresses to customers throughout
the United States. Id. ¶ 16.
Motion, Plaintiff details various efforts it has made to
locate and personally serve Defendant Singer. Doc. 41 at 1.
Plaintiff first describes its efforts to discuss its
allegations with Singer prior to filing its Second Amended
Complaint naming him as a defendant. Id. This was
done by two letters, sent on November 14 and 18, 2016. Docs.
41-1 & 41-2. The first letter was sent via federal
express to Defendant Singer's residence, but was returned
undelivered. Doc. 41-1. Plaintiff sent a second letter via
first class mail to Defendant Singer's residential
address and to a purported business address. Doc.
41-2. Defendant Singer did not respond to these letters.
Doc. 41 at 2. While Plaintiff's letters threatened
litigation, they were not attempts at service. Indeed, the
Second Amended Complaint was not even filed until January 5,
2017. See Docs. 35, 41-1 & 41-2.
then employed ASAP Serve, a professional process server, to
serve Defendant Singer personally. Doc. 41 at 2. According to
the affidavit of John Osborn, he attempted to personally
serve Defendant at his residence four times between January
21 and 31, 2017. Doc. 42. Mr. Osborn avers that on
these occasions there was no answer at Defendant's door,
despite the fact that he could hear noises consistent with
someone moving around inside the home. Id. Mr.
Osborn further avers that he observed a pickup truck in
Defendant's driveway with “OUTWEST GIFTS”
printed on the doors and that one of Defendant's
neighbors verified that he lives at the target residence.
now moves the Court for permission to serve by publication,
asserting that Defendant Singer is consciously avoiding
service despite its diligent efforts to serve him personally.
Doc. 41 at 1.
is no express provision for service by publication under the
Federal Rules of Civil Procedure. However, Rule 4(e)(1)
provides that a defendant may be served 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.”
Mexico Rule 1-004(F) requires personal service of process
upon an individual and specifies various methods in which
personal service may be accomplished. See Rule
1-004(F) NMRA. If personal service cannot reasonably be
accomplished in accordance with Rule 1-004(F), then
constructive service is permitted under Rule 1-004(J), which
[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.
Rule 1-004(J) NMRA (emphasis added).
service by publication is generally limited to in
rem or quasi in rem actions, the New Mexico
Supreme Court has carved out an exception to this general
rule “in cases where the defendant, being aware that
civil action may be instituted against him, attempts to
conceal himself to avoid service of process.” Clark
v. LeBlanc, 1979-NMSC-034, ¶ 7, 92 N.M. 672, 673,
593 P.2d 1075, 1076.
This exception is based on the fact that “[i]n
concealing himself, the defendant, by his own action, renders
personal service or process impossible. This action
constitutes a waiver of notice of the proceedings sought to
be avoided . . . . To allow a person to escape his civil
obligation by purposefully hiding himself would be to
encourage deception.” Id. In order to permit
substituted service on the basis of evasion, the Court must
make a finding of fact that the defendant intentionally
avoided service of process. Edmonds v. Martinez,
P.3d __, 2009 WL 2381282, at *4 (N.M. App. May 6, 2009).
Cowan et al. v. Angelico, et al., CIV 09-0483
JCH/LFG, Doc. 49 at 4 (emphasis added). The Court
notes that in the Cowan case, Magistrate Judge
Lorenzo F. Garcia denied a motion for service by publication
even where the plaintiffs “made a prima facie
showing” that the defendants had “actual notice
of the lawsuit” and were “intentionally avoiding
service of process.” Id. at 3. Judge Garcia
specifically found that the Cowan plaintiffs failed
to satisfy the state requirements for service by publication
because: (1) they did not demonstrate by affidavit that
service could not be accomplished by other ...