The Lash Group, LLC v. Daya Medicals, Inc.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 THE LASH GROUP, LLC, a Delaware Case No. 2:24-cv-00843-ART-EJY limited liability company, — 5 — Plaintiff, ORDER — 6 — v. — 7 — DAYA MEDICALS, INC., a Nevada 8 corporation, 9 Defendant. — 10 — 11 Pending before the Court is The Lash Group LLC’s Ex Parte Motion for Leave to Effectuate 12 Alternative Service of Process on Defendant. ECF No. 11. The filing of the Motion ex parte is 13 denied as Plaintiff does not “articulate the rule that permits ex parte filing and explain why it is filed 14 on an ex parte basis” as required by LR IA 7-2(b). Nevertheless, for the reasons stated below, the 15 substantive request in the Motion is granted. 16 Rule 4 of the Federal Rules of Civil Procedure establishes the methods for service of civil 17 complaints filed in federal court. Federal Rule 4(e)(1) allows for service following the laws of the 18 state in which the federal court is located. Nevada Rule of Civil Procedure 4.4 allows for alternative 19 service methods upon a motion of a party (i) demonstrating due diligence to locate the defendant, 20 (ii) proposing alternative service methodology, and (iii) explaining why the proposed alternative 21 service meets the requirements of due process. When considering a request to serve a defendant by 22 alternative means the Nevada Supreme Court asks the underlying courts to take into consideration 23 attempts made by a plaintiff to serve a defendant at his known residence, and other methods of 24 locating a defendant, such as consulting public directories. Price v. Dunn, 787 P.2d 785 , 786-87 25 (Nev. 1990), rev. on other grounds, NC-DSH, Inc. v. Garner, 218 P.3d 853 (Nev. 2009) (and noting 26 that Price otherwise remains good law); Abreu v. Gilmer, 985 P.2d 746, 747 (Nev. 1999); McNair 27 v. Rivera, 874 P.2d 1240, 1241 (Nev. 1994). However, plaintiffs are not required to attempt every 1 permissible means of service of process before requesting an alternative method of service. Neumont 2 Univ., LLC v. Nickles, 304 F.R.D. 594, 600 (D. Nev. 2015). 3 The alternative methods of service must comport with due process. Rio Props., Inc. v. Rio 4 Int’l Interlink, 284 F.3d 1007, 1016 . Due process requires that a defendant in a civil action be given 5 notice of the action that is reasonably calculated to apprise the defendant of the pendency of the 6 action and afford the defendant an opportunity to present his or her objection. Mullane v. Cent. 7 Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). 8 A motion seeking an order allowing alternative service by publication must provide 9 affidavits, declarations or other evidence demonstrating: (1) the due diligence that was undertaken 10 to locate and serve the defendant; (2) the efforts made to locate and serve the defendant; (3) the 11 defendant’s known, or last known contact information; (4) the last known address, the dates during 12 which the defendant resided at the location, and confirmation the plaintiff is unaware of any other 13 address at which the defendant has resided since that time, or at which the defendant can be found. 14 Nev. R. Civ. P. 4.4(b)(2), 4.4(c)(2); see also Eko Brands, LLC v. Houseware Sols., LLC, Case No. 15 2:20-cv-2076-RCJ-BNW, 2021 WL 4149016 , at *2 (D. Nev. Aug. 20, 2021); Gomez v. State Dep’t 16 of Bus. & Indus. Rels., Case No. 2:21-cv-01184-GMN-VCF, 2021 U.S. Dist. LEXIS 201074 , at *2 17 (D. Nev. Oct. 19, 2021). Such request must state why service by publication comports with due 18 process and, if service by publication is contemplated, include the proposed language of the 19 summons to be used in the publication, briefly summarizing the claims asserted and the relief sought; 20 and suggest one or more newspapers or other periodicals in which the summons should be published 21 that are reasonably calculated to give the defendant actual notice of the proceedings. Nev. R. Civ. 22 P. 4 .4(c)(4)(A). The publication should “be reasonably calculated to give the defendant actual notice 23 of the proceedings.” Id. The service must be published at least once a week for a period of four 24 weeks. Id. 25 Plaintiff represents, and supports through declarations, that it sought to serve Defendant’s 26 registered agent identified on the Nevada Secretary of State website but discovered the address is a 27 post office box located inside a United Parcel Service (“UPS”) retail store. ECF No. 11 at 3. The 1 president and secretary—is the same post office box at the same UPS retail store as Defendant listed 2 for its registered agent. Id. at 4. Neither federal or state rules pertaining to service allows service of 3 a corporation by delivering a summons and complaint to a post office box. Nev. R. Civ. P. 4.2(c)(2); 4 Fed. R. Civ. P. 4(e)(1). 5 Plaintiff identified several other means for serving Defendant through its research. ECF No. 6 11 at 4. Plaintiff lists three possible electronic platform addresses, one email address, and several 7 physical addresses in Reno, Nevada for potential service on Defendant. Id. Plaintiff attempted 8 service at the Reno addresses, but these attempts were unsuccessful. Id. Plaintiff is unable to locate 9 any other physical address for Defendant. Id. Based on the foregoing, Plaintiff seeks permission to 10 serve Defendant by electronic mail, U.S. Mail, Federal Express, and telephone notice, as well as 11 through their social media accounts. 12 The Court has considerable discretion when determining whether alternative service should 13 be permitted. Rio Properties, Inc., 284 F.3d at 1016 . Service may be accomplished through any 14 means “reasonably calculated to provide notice and an opportunity to respond.” Id. at 1017 . Here, 15 the Court finds alternative service of process is reasonable and, in fact, necessary as Defendant failed 16 to provide a registered agent or other address to the Secretary of State for purposes of service of 17 process. The methods offered by Plaintiff are all reasonably calculated to provide notice and an 18 opportunity to respond and, therefore, are approved. However, the Court adds that Plaintiff must 19 serve Defendant by publication. 20 Plaintiff must file a proposed order with the Court in which it states each method of service 21 it identifies in its instant Motion as well as how it intends to serve by publication. The proposed 22 order must include the language of the summons to be used in the publication, briefly summarizing 23 the claims asserted and the relief sought, and identify one or more newspapers or other periodicals 24 in which the summons will be published. Nev. R. Civ. P. 4.4(c)(4)(A). The publication must be 25 reasonably calculated to give Defendant actual notice of these proceedings. Id. This service must 26 be published at least once a week for a period of four weeks. Id. Service on Defendant will be 27 deemed effective on the last day service by publication occurs. Defendant’s responsive pleading is 1 Accordingly, IT IS HEREBY ORDERED that The Lash Group LLC’s Motion for Leave to 2 Effectuate Alternative Service of Process on Defendant (ECF No. 11) is GRANTED. 3 IT IS FURTHER ORDERED that The Lash Group must, no later than July 12, 2024, submit 4 a proposed order consistent with the content of this Order to the Court by (1) filing the same, and (2) 5 emailing the proposed order in WORD format to Emily Santiago, Judicial Executive Assistant to the 6 undersigned, at Emily_Santiago@nvd.uscourt.gov. 7 IT IS FURTHER ORDERED that service on Defendant will be deemed effective on the last 8 day service by publication occurs. 9 IT IS FURTHER ORDERED that Defendant’s responsive pleading is due 21 calendar days 10 thereafter. 11 Dated this 3rd day of July, 2024. — 12 — — 13 — ELAYNA J. YOUCHAH 14 UNITED STATES MAGISTRATE JUDGE — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 —