Zurich American Insurance Company v. Chavers

[2] UNITED STATES DISTRICT COURT [3] DISTRICT OF NEVADA [4] * * * [5] Case No. 2:25-cv-00240-CDS-BNW 6 Zurich American Insurance Company, 7 Plaintiff, ORDER 8 v. 9 Austin Chavers, et al., 10 Defendants. [11] 12 Before this Court is Plaintiff’s Motion to Serve Certain Defendants by Publication. ECF 13 No. 28. No opposition was filed. Because Plaintiff failed to meet the requirements for service by 14 publication, this Court denies the motion without prejudice. However, this Court, in its discretion, 15 extends the time for service. 16 I. BACKGROUND 17 This is an interpleader action that Plaintiff, an insurance company, commenced to 18 distribute underinsured motorist benefits to persons involved in a vehicle accident. ECF No. 28 at 19 2. Defendants were passengers in a vehicle, insured by Plaintiff, that may have a claim to the 20 insurance proceeds. In the complaint, Plaintiff names 15 defendants, 12 of which have appeared 21 in the case. The remaining three defendants—Curtis Edge, Nathan Schmidt, and Debora Schantz 22 —have not been served. See ECF No. 27 (notice of intent to dismiss for lack of service). The 23 deadline to file proof of service was May 5, 2025. See ECF No. 1. Plaintiff filed the present 24 motion on June 3, 2025. ECF No. 28. 25 In that motion, Plaintiff states that it ran a Westlaw people search report that yielded an 26 address for each unserved Defendant, and it attempted service once at those addresses. Id. at 2–3. 27 When service was unsuccessful, Plaintiff explains it requested skip traces that, again, yielded an 1 Defendant Edge, Plaintiff states the process server spoke with the residents at each address, and 2 they advised they did not know him. Id. at 2. As to Defendant Schmidt, the process server noted 3 that the residences were empty and confirmed as much with the property manager. Id. at 3. 4 Finally, as to Defendant Schantz, the process server spoke with the residents at each address, and 5 they advised that Defendant Schantz was either unknown or had moved. Id. The process server 6 further called Defendant Schantz, but did not speak to her. Id. 7 II. ANALYSIS A. This Court denies Plaintiff’s motion to serve by publication because Plaintiff has 8 not met the requirements under Nevada Rule of Civil Procedure 4.4(c). 9 The Constitution does not require any particular means of service of process. Rio Props., 10 Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1017 (9th Cir. 2002) (citing Mullane v. Central Hanover 11 Bank & Trust Co., 339 U.S. 306, 314 (1950)). Instead, it requires only that service “be reasonably 12 calculated to provide notice and an opportunity to respond.” Id. To that end, service of process is 13 governed by Rule 4 of the Federal Rules of Civil Procedure. 14 Rule 4(e) governs service of individuals located within a judicial district of the United 15 States. Fed. R. Civ. P. 4(e). It provides that service is proper by serving an individual in 16 accordance with law of the state where the district court is located. Id. This Court is located in the 17 District of Nevada. The Nevada Rules of Civil Procedure (“NRCP”), in turn, allow for service by 18 publication. NRCP 4.4(c). 19 A litigant who desires to effect service by publication must meet eight requirements. 20 NRCP 4.4(c). The litigant must (1) establish that “the service methods provided in [NRCP] 4.2, 21 4.3, and 4.4(a) and (b) are impracticable”;1 (2) demonstrate that the defendant cannot, after due 22 diligence, be found, or that the defendant seeks to avoid service of process through concealment; [24] 1 NRCP 4.2 tracks federal Rule 4(e)(2) and permits service of an individual by either delivering a 25 copy of the summons and complaint to the individual personally, leaving the copies at the individual’s dwelling with a person of suitable age and discretion, or delivering the copies to an [26] agent authorized by appointment or by law to receive service of process. NRCP 4.2(a); Fed. R. 27 Civ. P. 4(e)(2). NRCP 4.3 governs service of individuals located outside Nevada or outside the United States. NRCP 4.4(a) governs service in a manner prescribed by statute. And NRCP 4.4(b) 1 (3) establish through pleadings or other evidence that a cause of action exists against the 2 defendant; (4) demonstrate that the defendant is a necessary or proper party to the action; (5) set 3 forth specific facts demonstrating the efforts plaintiff made to locate and serve the defendant; 4 (6) provide the proposed language of the summons to be used in the publication, briefly 5 summarizing the claims asserted and the relief sought; (7) suggest one or more newspapers in 6 which the summons should be published that are reasonably calculated to give the defendant 7 actual notice; and (8) provide the defendant’s last-known address, the dates during which 8 defendant lived at that address, and confirmation that plaintiff is unaware of any other address at 9 which defendant has resided since that time or at which defendant can be found. NRCP 4.4(c). 10 Here, Plaintiff has not made the requisite showing under NRCP 4.4(c)—and, by 11 extension, federal Rule 4(e)(1)—to effect service of process by publication. Plaintiff hardly 12 addressed any of the NRCP 4.4(c) requirements. Although Plaintiff has met some requirements, it 13 has not met others. 14 i. Plaintiff has met requirements three, four, six, seven, and eight. 15 Plaintiff has shown that a cause of action exists against the unserved Defendants 16 (requirement three). A cause of action is “[a] group of operative facts giving rise to one or more 17 bases for suing” or a “legal theory of a lawsuit.” Cause of Action, Black’s Law Dictionary (12th 18 ed. 2024). Plaintiff’s theory, set forth in its pleadings, meets this requirement. See ECF No. 1. 19 Relatedly, Plaintiff has shown that the unserved Defendants are necessary and proper parties to 20 this matter (requirement four) because they may have been injured in the accident and be entitled 21 to the insurance proceeds. ECF No. 28 at 2; ECF No. 1 at 2–3. 22 In addition, Plaintiff provided the proposed language of the summons to be used in 23 publication (requirement six)2 and suggested two newspapers, the Los Angeles Times and Las [24] 2 NRCP 4.4 provides that litigants who desire to serve their adversaries by publication must [25] “provide the proposed language of the summons to be used in the publication, briefly 26 summarizing the claims asserted and the relief sought[.]” NRCP 4.4(c)(2)(C). Thus, NRCP 4.4 speaks to the content of the summons. However, the required content of summonses issued by the 27 federal court is governed by Federal Rule of Civil Procedure 4. See Fed. R. Civ. P. 4(a). Rule 4 is consonant with the Rules Enabling Act and the U.S. Constitution because it does not “abridge, 1 Vegas Review Journal, to publish the summonses in (requirement seven). ECF No. 28 at 5–6. 2 These newspapers are reasonably calculated to give the unserved Defendants’ actual notice 3 because, based on previous addresses, they reside in either Las Vegas or Los Angeles. ECF No. 4 28 at 2–3, 5. Finally, Plaintiff stated that it did not know the unserved Defendants’ last-known 5 addresses (except for Defendant Schantz), the dates during which they lived at those addresses, 6 and any other addresses they have resided at since that time or at which they can be found 7 (requirement eight). 8 ii. Plaintiff has not met requirements one, two, and five. 9 Plaintiff provided no explanation as to why the service methods provided in Rules 4.2, 10 4.3, and 4.4(a) and (b) are impracticable (first requirement). NRCP 4.4(c). Plaintiff’s conclusory 11 statement that “[e]ach element can be met” is insufficient, especially as to why the alternate 12 service methods under 4.4(b) are impracticable. 13 In addition, this Court does not have enough information to determine that the unserved 14 Defendants cannot be found after due diligence (requirement two) because Plaintiff did not set 15 forth specific facts demonstrating its efforts to locate and serve the defendants (requirement five). 16 There is “no objective, formulaic standard for determining what is, or is not, due diligence.” 17 Abreu v. Gilmer, 985 P.2d 746, 749 (Nev. 1999). Due diligence “is not quantifiable by reference 18 to the number of service attempts or inquiries into public records.” Id. Instead, “due diligence is 19 measured by the qualitative efforts of a specific plaintiff seeking to locate and serve a specific 20 defendant.” Id. 21 Here, this Court lacks specific information about Plaintiff’s efforts to locate the unserved 22 Defendants’ addresses. Though Plaintiff conducted one Westlaw people search report and one 23 skip trace for each unserved Defendant, there is no indication about what the people search 24 reports/skip traces entailed or if they yielded information beyond just one address for each [26] Amersham, 347 F.3d 752 , 761 (9th Cir. 2003). Therefore, Rule 4 “applies regardless of contrary 27 state law.” Gasperini v. Ctr. for Humanities, 518 U.S. 415 , 427 n.7 (1996). Accordingly, Rule 4 will govern the content of the summonses issued in this case. This Court will not ask Plaintiff to 1 unserved Defendant (such as additional addresses, telephone numbers, email addresses, etc.). 2 Moreover, Plaintiff does not state what public or propriety databases were consulted regarding the 3 skip traces. Thus, this Court cannot say that the unserved Defendants cannot be found after due 4 diligence. 5 Additionally, Nevada law enables the Court to order Plaintiff “to make reasonable efforts 6 to provide additional notice . . . to a defendant using other methods of notice, including certified 7 mail, telephone, voice message, email, social media, or any other method of communication.” 8 NRCP 4.4(d)(1). Should Plaintiff file a renewed motion requesting service by publication, this 9 Court would also require Plaintiff to attempt these other methods as well. Thus, if Plaintiff seeks 10 to renew this motion, a declaration should be attached describing what other efforts were 11 undertaken. B. This Court will extend Plaintiff’s time to serve Defendants Edge, Schmidt, and 12 Schantz. 13 Under Federal Rule of Civil Procedure 4(m), if the defendant is not served within 90 days 14 after the complaint is filed, the court, on motion or on its own after notice to the plaintiff, must 15 dismiss an action without prejudice against a defendant or order that service be made within a 16 specified time. However, “if the plaintiff shows good cause for the failure, the court must extend 17 the time for service for an appropriate period.” Fed. R. Civ. P. 4(m). In the absence of good cause, 18 the court has discretion to dismiss the case without prejudice or to extend the time for service. In 19 re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). 20 Here, Plaintiff did not move to extend the time for service, even though the deadline to 21 serve Defendants was May 5, 2025. See ECF No. 1. Still, given Plaintiff’s service attempts, this 22 Court will exercise its discretion to extend the time for service. Plaintiff will have an additional 23 120 days to serve Defendants Edge, Schmidt, and Schantz. 24 / / / 25 / / / 26 / / / 27 / / / 1} I. CONCLUSION 2 IT IS ORDERED that Plaintiff's motion (ECF No. 28) is DENIED without prejudice. 3 IT IS FURTHER ORDERED Plaintiff will have an additional 120 days from the date of 4 || the entry of this order to effect service of the summons and operative complaint on Defendants 5 || Curtis Edge, Nathan Schmidt, and Debora Schantz. [6] 7 DATED: July 1, 2025 g . 9 Kx pnw la WEEN BRENDA WEKSLER 10 UNITED STATES MAGISTRATE JUDGE 1]