United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF'S MOTION FOR SERVICE BY
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's
Unopposed Motion for Service by Publication
[Doc. 30], filed on November 13, 2019. Defendants never
responded, and the time for doing so has passed. The Court
has considered the briefing, the relevant portions of the
record, and the relevant law. Being otherwise fully advised
in the premises, Plaintiff's Motion is DENIED without
sued Defendants on June 28, 2019, for deprivations of his
civil rights under the U.S. Constitution and 42 U.S.C. §
1983, and for various state-law claims. [Doc. 1] at 1. He
alleges that, while detained at the Doña Ana County
Detention Center, the detention center and its staff
(including Defendant Christopher Barela) negligently
maintained medical facilities and were deliberately
indifferent to Plaintiff's serious heart condition.
See Id. at 1-20. Plaintiff seeks damages for the
injuries Defendants allegedly caused. Id. at 20-21.
has successfully served all Defendants except Barela.
See [Doc. 24] at 1-3. Plaintiff's process
server, Jack Rokowski, avers that he has attempted to serve
Barela at his suspected home on four occasions. On August 17,
2019, Rokowski visited Barela's house, but “no one
was home.” [Doc. 24-3] at 1. He tried to serve Barela
at his home two more times-on August 17 and 19, 2019-but on
each occasion “there were no cars and no answer at
the door.” Id. Finally, on August 27, 2019,
Rokowski went to Barela's home to serve him and noticed a
Jeep belonging to Barela in the driveway. See Id. at
2. According to Rokowski, “[s]omeone was home, but they
refused to answer the door.” Id. Arguing that
he has not served Barela despite “zealous
efforts” to do so, Plaintiff moved for service by
publication on November 13, 2019. [Doc. 30] at 1.
Federal Rules of Civil Procedure do not expressly allow for
service by publication. Wilmington Savings Fund
Soc'y, FSB v. Apodaca, No. 18-cv-0114 JAP/KBM, 2018
WL 3145836, at *1 (D.N.M. June 27, 2018). Nonetheless, Rule
4(e)(1) permits a plaintiff to serve an individual 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). The New Mexico Rules of
Civil Procedure for the District Courts, in turn, allow for
service by publication in limited circumstances.
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
Rule 1-004(J) NMRA (emphasis added). Therefore, before moving
to serve an individual by publication, a plaintiff must
attempt to follow New Mexico's rules for serving
individuals. These rules provide that a plaintiff may serve
an individual “(1) by delivering the summons to him;
(2) if the first step is unsuccessful, by leaving the summons
with someone living at his usual place of abode; or (3) if
the other methods do not work, by delivering the summons to
the person in charge at his place of employment.”
Ruiz-Marentes v. Montoya, No. 12-cv-1014 WDS/WPL,
2013 WL 12334151, at *2 (D.N.M. Mar. 18, 2013); see
Rule 1-004(F). Even if a plaintiff completes these steps, he
must comply with New Mexico's rules regarding the form of
the motion for service by publication. See, e.g.,
Rule 1-004(K) (providing that the movant must attach to his
motion a copy of the proposed notice to be published).
New Mexico courts generally limit service by publication to
in rem or quasi in rem actions.
Buffalo Hogan, Inc. v. Greene, No. 16-cv-0420
PJK/KBM, 2017 WL 3608243, at *2 (D.N.M. Feb. 21, 2017).
Nonetheless, the New Mexico Supreme Court permits plaintiffs
to serve individual defendants by publication “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. “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.” Cowan v.
D'Angelico, No. 09-cv-0483 RB/LFG, [Doc. 49] at 4
(D.N.M. Sept. 15, 2009).
case, the Court will deny Plaintiff's Motion for Service
by Publication because (1) he has not shown that he complied
with New Mexico's rules for serving individuals, and (2)
he has not shown that Barela attempted to conceal himself to
avoid service. As to the first reason, Rokowski does not aver
that he attempted to serve Barela by delivering the summons
to the person in charge at his place of employment. Nor does
he aver that Barela is unemployed or otherwise concealed his
work location from Plaintiff. As noted above, if a plaintiff
cannot serve a defendant personally or by leaving the summons
at the defendant's place of abode, Rule 1-004(F)(3)
requires a plaintiff to attempt to serve the individual by
delivering the summons to the person in charge at his or her
place of employment. Rule 1-004(F)(3). Plaintiff has not
shown that service cannot reasonably be made as provided by
Rule 1-004(F). Therefore, the Court will deny his Motion.
See Buffalo Hogan, Inc., 2017 WL 3608243, at *3
(finding that the plaintiff failed to comply with Rule 1-004
because“[t]here is no indication that Plaintiff
attempted to personally serve Defendant at his place of
business as permitted by Rule 1-004(F)(3)”).
Plaintiff has not shown that Barela attempted to conceal
himself to avoid service. Plaintiff sues Barela for damages
incurred as a result of civil rights violations; he does not
bring an in rem or quasi in rem action.
See [Doc. 1] at 13-20. Therefore, the Court must
decide whether Barela was aware that he was the subject of a
lawsuit and attempted to conceal himself to avoid service.
Rokowski avers that he went to Barela's registered
address on four occasions within a 10-day span, but nobody
answered the door each time. [Doc. 24-3] at 1-2. He avers
that “no one was home” the first time that he
went to Barela's house and avers that “there were
no cars and no answer at the door” the next two times
he went to Barela's house. Id. at 1. Rokowski
avers that on his fourth attempt to serve Barela at his home,
he noticed a Jeep registered to Barela in the driveway, and
“[s]omeone was home, but they refused to answer the
door.” Id. at 2.
facts do not establish that Barela attempted to avoid
service. In fact, if it appeared that nobody was home during
Rokowski's first three attempts to serve Barela, then
Barela likely would have had no knowledge that Rokowski even
attempted to serve him at those times. The Court does not
conclude that one instance of failing to answer the door when
Rokowski tried to serve Barela a fourth time constitutes an
attempt to evade service. Even assuming Barela was home
during this fourth attempt, he simply could have failed to
hear Rokowski knock or failed to reach the door in time to
respond to Rokowski before the latter departed. Without more,
the facts as presented do not show that Barela attempted to
evade service. See Buffalo Hogan, Inc., 2017 WL
3608243, at *3 (“Although Plaintiff has exercised due
diligence and seems to have located Defendant Singer's
residence, it appears that Plaintiff has attempted only to
serve him personally at that location over a 10-day period.
For all we know, Defendant Singer was away on a 2-week trip
during those visits, and he left his radio on to create the
impression that someone was home.”).
Plaintiff fails to show either that he complied with Rule
1-004(F) or that Barela attempted to conceal himself to avoid
service, the Court will deny his Motion without prejudice.
Plaintiff may renew ...