United States District Court, D. New Mexico
ORDER DENYING MOTION FOR SERVICE BY PUBLICATION
Fashing United States Magistrate Judge
MATTER is before the Court on Plaintiff's Motion for
Service by Publication and Certification Regarding Due
Diligence, filed on August 23, 2017. Doc. 36. In the motion,
plaintiff asks the Court for an order granting permission to
serve by publication defendants “The Monica L.
Wellington Declaration of Trust dated December 28,
2007” and The Unknown Spouse of Monica L. Wellington.
Id. at 1. Defendant JP Morgan Chase Bank, N.A.
concurred in the motion. Id. Defendant Monica L.
Wellington filed a response in opposition to the motion. Doc.
40. Plaintiff filed a reply. Doc. 41. The Court, having
reviewed the parties' submissions and the relevant law,
and being otherwise fully advised, finds the motion is not
well taken, and it will be denied without prejudice.
the Federal Rules of Civil Procedure, a person may be served
in a judicial district in 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; or
doing any of the following:
(A) delivering a copy of the summons and of the complaint to
the individual personally;
(B) leaving a copy of each at the individual's dwelling
or usual place of abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e).
in this case, service can be made by following the laws of
service for New Mexico, where this Court is located, or by
following the laws of service of the state in which the
unserved defendants reside. The Court will apply the laws of
service for New Mexico. New Mexico's rules governing
service allow for both personal service and service “by
mail or commercial courier service provided that the envelope
is addressed to the named defendant and further provided that
the defendant or a person authorized by appointment, by law
or by this rule to accept service of process upon the
defendant signs a receipt for the envelope or package
containing the summons and complaint.” Rule
1-004(E)(3), (F)(1) NMRA. If personal service and service by
mail are unsuccessful, service may be made by
“delivering 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” or 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)(1)-(2) NMRA.
neither personal service nor service by registered mail is
successful, New Mexico's laws of service also allow
service to be made by “delivering a copy of the process
at the actual place of business or employment of the
defendant.” See Rule 1-004(F)(3) NMRA. Service
on an individual trustee is governed by the same rules of
service. See Rule 1-004(I)(2) NMRA.
plaintiff shows by affidavit that service “cannot
reasonably be made as provided by this rule, ” the
court may order service by publication. Rule 1-004(J) NMRA.
The motion for service by publication must include a copy of
the proposed notice. Rule 1-004(K) NMRA. If the Court allows
service by publication, the notice must be published once a
week for three consecutive weeks in a newspaper of general
circulation “in the county which reasonably appears is
most likely to give the defendant notice of the
action.” Rule 1-004(K)(1) NMRA. Courts should permit
service by publication only when service has been attempted
through the “hierarchy of mechanisms set out under NMRA
1-004(F), and requires that a party requesting service by
unconventional methods demonstrate that this hierarchy was
followed in detail, although the attempts were
unsuccessful.” Soto v. Village of Milan Police
Dept., et al, No. 10cv43 WJ/ACT, Doc. 51 at 5-6 (D.N.M.
Sept. 17, 2010); see also Hunt v. Inter-Globe Energy,
Inc., 770 F.2d 145, 147 (10th Cir. 1985) (due diligence
shown in attempt to serve process by carefully following the
procedural steps outlined in the state's rule governing
case, plaintiff submitted an affidavit showing multiple
attempts to personally serve defendants “The Monica L.
Wellington Declaration of Trust dated December 28,
2007” and the Unknown Spouse of Monica L. Wellington.
Doc. 36 at 4-8. The service attempts were made at Monica
Wellington's address of record in this case: 13061
Brookpark Rd., Oakland, CA 94619. Id. In its
complaint, plaintiff asserts that Monica Wellington is the
“Trustee of the Monica L. Wellington Declaration of
Trust dated December 28, 2007.” Doc. 1-1 at 4. Monica
Wellington has appeared in this case. Thus, if the complaint
is accurate, and if Ms. Wellington is married, it appears
likely that “The Monica L. Wellington Declaration of
Trust dated December 28, 2007” and the Unknown Spouse
of Monica L. Wellington have actual notice of the pendency of
this action and are attempting to avoid service of process.
Nonetheless, service by publication at this juncture is
states that defendant Monica L. Wellington “has not
accepted service on behalf of the Trust, as its Trustee,
” and that she “has painted an unclear picture as
to whether she is married or not, ” which obviously has
hampered plaintiff's attempts to serve these defendants.
Doc. 41 at 2. The Court notes that plaintiff has not yet
attempted to serve defendants through the hierarchy of means
available under New Mexico law-there have been no attempts to
serve defendants by registered mail, and no attempts to serve
the unknown spouse at his or her place of business or
employment. The Court recognizes that service by these
methods requires plaintiff to ascertain the identity and
location of these defendants. Therefore, rather than granting
the motion for service by publication at this time, the Court
finds that the better course is to grant plaintiff a period
to conduct limited discovery to ascertain the identity and
location of the defendants it seeks to serve by publication.
Therefore, the Court grants plaintiff a 60-day period to
conduct limited discovery to determine whether Monica L.
Wellington has a spouse or former spouse, the spouse or
former spouse's name, home address, and business address;
as well as to obtain copies of trust documents or other
information confirming the name and address of the trustee of
“The Monica L. Wellington Declaration of Trust dated
December 28, 2007.” Ms. Wellington must timely comply
with all discovery requests that fall within these
parameters. At the close of this limited discovery period,