United States District Court, D. New Mexico
STATE OF NEW MEXICO, ex rel., HECTOR H. BALDERAS, Attorney General of New Mexico, Plaintiff/Petitioner,
REAL ESTATE LAW CENTER, P.C., et al., Defendants/Respondents.
ORDER GRANTING AMENDED MOTION TO PERMIT ALTERNATIVE
MATTER comes before the Court on Plaintiff's Amended
Motion for Alternative Service Upon Defendant Erickson Davis
(Doc. 19). The Court denied Plaintiff's first Motion to
Permit Alternative Service due to Plaintiff's failure to
include the proposed notice pursuant to Rule 1-004(K) NMRA.
Doc. 18. Plaintiff then refiled the Motion with the proposed
notice. Having reviewed the Amended Motion, the Court finds
that it is well-taken and should be GRANTED.
noted in the Court's first Order (Doc. 18), there 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.”
Fed.R.Civ.P. 4(e)(1). New 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 provides:
Upon 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.
Mexico Supreme Court has previously held that service by
publication may be appropriate “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, 593 P.2d 1075.
This exception is based on the fact that “in concealing
himself, the defendant, by his own action, renders personal
service or process impossible. This action constitutes 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.”
Cowen, et al. v. Angelico, et al., Civ. No. 09-0483
JCH/LFG, Doc. 49 at 4. Recently, the New Mexico Supreme Court
reiterated that “the exercise of diligence and good
faith to locate a defendant are implicit prerequisites to
effect service of process by publication.” T.H.
McElvain Oil & Gas Limited Partnership v. Group I:
Benson-Montin-Greer Drilling Corp., Inc., 2017-NMSC-004,
¶ 32, 388 P.3d 240.
a plaintiff will able to establish that it exercised
diligence and good faith in attempting to locate a particular
defendant by complying with Rule 1-004. See T.H.
McElvain, 2017-NMSC-004, ¶ 32 (noting that Rule
1-004 effectuates the requirements of due process).
Accordingly, service must be “attempted through the
hierarchy of mechanisms set out under [Rule 1-004(F)]”
and that a plaintiff must demonstrate “that this
hierarchy was followed in detail, although the attempts were
unsuccessful.” See Soto v. Vill. of Milan Police
Dep't, Civ. No. 10-0043 WJ/ACT, Doc. 51 (Sept. 17,
2010). Thus, a plaintiff must first deliver a copy of a
summons and complaint to the individual personally, or by
mail or commercial courier as provided in Rule 1-004(E)(3).
Rule 1-004(F)(1) NMRA. If either of these means are
unsuccessful, a plaintiff may “deliver a copy of the
process to some person residing at the usual place of abode
of the defendant who is over the age of fifteen (15) years
and mailing by first class mail to the defendant at the
defendant's last known mailing address a copy of the
process.” Rule 1-004(F)(2). Finally, if no other means
is successful, then
service of process may be made by delivering a copy of the
process at the actual place of business or employment of the
defendant to the person apparently in charge thereof and by
mailing a copy of the summons and complaint by first class
mail to the defendant at the defendant's last known
mailing address and at the defendant's actual place of
business or employment.
Rule 1-004(F)(3) NMRA.
represents that he has taken a number of unsuccessful steps
to serve Defendant Davis. First, Plaintiff states that it
made three unsuccessful attempts to serve Defendant Davis
personally at the business address on file with California
Secretary of State. Doc. 19 at 1. Second, Plaintiff
represents that it made four unsuccessful attempts to serve
Defendant Davis at his place of abode. Doc. 19 at 2.
Plaintiff next mailed a request for waiver of service,
including the complaint and summons, to Defendant Davis at
this address. Doc. 17 at 2. Plaintiff additionally emailed
these documents to Defendant Davis. Doc. 17 at 2. Following
these unsuccessful attempts, Plaintiff located a new business
address for Defendant Davis and attempted both in-person
service and service by mail to no avail. Doc. 17-1 at 4.
Indeed, an employee of the company denied any knowledge of
Defendant Davis despite Defendant Davis being the registered
CEO of the company and representations by the owner of the
building that Defendant Davis received mail at that location.
Doc. 17-1 at 4. Given the above, the Court finds that
Plaintiff has complied with the requirements of Rule
1-004(F). Accordingly, the Court GRANTS Plaintiffs Motion.
THEREFORE ORDERED that Plaintiff may serve Defendant Davis by
publication consistent with Rule 1-004(K). As it appears that
Defendant Davis is a resident of California, the Court
further orders that notice of pendency of the action be
published in a newspaper of ...