BBC Chartering Carriers GMBH & Co. KG v. Dmitry Farber

[5] UNITED STATES DISTRICT COURT [6] WESTERN DISTRICT OF WASHINGTON AT SEATTLE [7] 8 BBC CHARTERING CARRIERS GMBH & CO KG, 9 CASE NO. 2:25-cv-01312-BAT Plaintiff, ORDER DENYING WITHOUT [10] v. PREJUDICE MOTION FOR ALTERNATIVE SERVICE OF [11] DMITRY FARBER, COMPLAINT AND SUMMONS, DKT. 16 [12] Defendant. [13] 14 Plaintiff BBC Chartering Carriers GMBH & Co. KG filed a motion to serve Defendant 15 Dmitry Farber by publication and email, or alternatively to extend the deadline for service. Dkt. 16 16. Having considered the motion and the record, the Court DENIES without prejudice the 17 request to serve by alternative means and GRANTS the request to extend the deadline for 18 service. 19 BACKGROUND 20 Plaintiff BBC Chartering’s complaint alleges that Defendant Dmitry Farber owns a 21 company called FMT Yacht Transport. BBC alleges that FMT hired BBC to transport FMT’s 22 yacht from China to Florida, by loading it on board BBC’s ship. Dkt. 1 at ¶ 7–8. During the 23 voyage, BBC’s ship allegedly incurred “demurrage charges” of about $400,000, which are fees applied when a container remains at the port beyond the time allowed. Id. at ¶ 10. BBC alleges it 1 invoiced FMT for these charges and ultimately entered into a settlement agreement under which 2 Farber agreed to personally pay BBC $100,000 by November 20, 2024. Id. at ¶ 13. BBC further 3 alleges that Farber has breached the agreement by paying only $20,000 of the amount owed. Id. 4 at ¶ 16. BBC brings claims for breach of contract and unjust enrichment. 5 BBC filed suit on July 14, 2025. On August 6, 2025, BBC’s process server tried to serve 6 Farber at the Seattle address listed on FMT’s website. Dkt. 16 at 2. The address belonged to a 7 different company, GreenLine Yachts, though the owner knew of Farber and believed he lived 8 near Lake Sammamish, Washington. Id. Counsel then uncovered an address in Sammamish 9 associated with Farber through a LexisNexis public records search. The process server attempted 10 service at the Sammamish address on October 13, 2025, but found the residence vacant. Id. The 11 process server tracked down two additional addresses associated with Farber, a vacant property 12 in Michigan and a residence in Florida belonging to a Yaroslav Farber believed to be the 13 defendant’s father. Service was attempted at the Florida residence on November 6, 2025. Id. at 3. 14 The server spoke to Yaroslav Farber, who stated that the defendant did not live in Florida but in 15 Sammamish, Washington, but did not give an address. Id. After another LexisNexis public 16 records search turned up only the same Sammamish address, the process server attempted service 17 again at that address on or about November 10, 2025, and found it still vacant. Dkt. 17-1 at 1. 18 There were no signs of anyone living there, no visible furniture, and no cars in the driveway. Id. 19 BBC requests permission to serve Farber by publication in the Seattle Times and by email 20 at two email addresses, sales@fmtyachttransport.com (listed on FMT’s website) and 21 dmitry@fmtyachttransport.com (because another employee’s publicly listed email address 22 follows the same pattern). [23] 1 DISCUSSION 2 Where a plaintiff cannot serve a defendant personally, Rule 4(e)(1) allows service by 3 “following state law for serving a summons in an action brought in courts of general jurisdiction 4 in the state where the district court is located or where service is made.” Washington’s service by 5 publication statute, RCW 4.28.100(2), provides: 6 When the defendant cannot be found within the state, and upon the filing of an affidavit of the plaintiff, his or her agent, or attorney, with the clerk of the court, 7 stating that he or she believes that the defendant is not a resident of the state, or cannot be found therein, and that he or she has deposited a copy of the summons [8] (substantially in the form prescribed in RCW 4.28.110) and complaint in the post 9 office, directed to the defendant at his or her place of residence, unless it is stated in the affidavit that such residence is not known to the affiant, and stating the 10 existence of one of the cases hereinafter specified, the service may be made by publication of the summons, by the plaintiff or his or her attorney in any of the 11 following cases: . . . [12] (2) When the defendant, being a resident of this state, has departed therefrom with 13 intent to defraud his or her creditors, or to avoid the service of a summons, or keeps himself or herself concealed therein with like intent. [14] The plaintiff must show that (1) its efforts to serve the defendant were reasonably [15] diligent; (2) the defendant is a resident of Washington; and (3) the defendant has either left the [16] state or concealed himself within it with the intent to defraud creditors or avoid service. RCW [17] 4.28.100(2); Hist. Dep’t & Co. v. Mertz, No. C20-5608 MLP, 2020 WL 6709776 , at *2 (W.D. [18] Wash. Nov. 16, 2020) (citing Charboneau Excavating, Inc. v. Turnipseed, 118 Wash. App. 358 , [19] 362–63 (Wash. Ct. App. 2003), as amended (Oct. 7, 2003)). The statute also requires the plaintiff [20] to mail the complaint and summons to the defendant’s place of residence or state by affidavit that [21] the residence is unknown. [22] “‘Service by publication or mail is in derogation of the common law,’ and therefore a [23] party must strictly comply with the statute.” Amana Glob. Co. v. King Cnty., No. C21-637-MLP, [1] 2023 WL 3172248 , at *2 (W.D. Wash. May 1, 2023) (quoting Rodriguez v. James-Jackson, 127 2 Wash. App. 139, 143 (Wash. Ct. App. 2005)). A plaintiff must set forth facts, not mere 3 conclusory allegations, showing the statutory requirements have been met. Id. Personal service is 4 preferred; constructive service by publication is permitted “only as a last resort.” Pascua v. Heil, [5] 108 P.3d 1253, 1258 (Wash. Ct. App. 2005). 6 While BBC has made some efforts to serve Farber, its efforts fall short of the reasonable 7 diligence Washington law requires. BBC has attempted service unsuccessfully a total of four 8 times at three addresses and has twice searched one public records database (LexisNexis) for 9 Farber. Dkt. 16 at 2–3. BBC says that its process server performed a “skiptrace,” id. at 3, but 10 without details, the Court cannot evaluate whether that process constituted reasonable diligence. 11 BBC does not indicate it has yet, for example, searched social media; searched any other public 12 records, such as court or motor vehicle records; sent mail or email to any address associated with 13 Farber; followed up with the individual in Florida who appears to be related to him; or hired a 14 private investigator. 15 Similar efforts have been held not reasonably diligent. See JFXD TRX ACQ LLC v. E. 16 River JW Inc., No. 2:24-CV-00594-JNW, 2024 WL 3552358 , at *2 (W.D. Wash. July 26, 2024) 17 (denying alternative service where plaintiff attempted service three times); Amana, 2023 WL 18 3172248, at *2 (denying alternative service where plaintiff emailed defendant’s business email 19 address, sent registered mail and a process server to defendant’s business address, and delivered 20 the summons and complaint to defendant’s son). Conversely, cases authorizing alternative 21 service of process involve greater efforts to locate the defendant: for example, the Washington 22 Court of Appeals found reasonable diligence where plaintiffs attempted service at an address 23 listed on an accident report, checked telephone directories and conducted internet searches, hired 1 a private investigator who checked police, utility, and voting records, and visited a woman with 2 the same last name 10 times after she claimed she might be able to locate the plaintiff. Boes v. 3 Bisiar, 122 Wash. App. 569 , 575–76 (Wash. Ct. App. 2004); Mertz, 2020 WL 6709776 , at *1 (in 4 addition to attempting service twice, plaintiffs sent mail and email to track the defendant down). 5 BBC also fails to set forth facts adequately showing that Farber has left Washington or 6 concealed himself in the state with the intent to defraud his creditors or avoid service of a 7 summons, as RCW 4.28.100(2) requires. BBC states briefly that Farber is “plainly evading 8 service” because he “continues to list a false business address, vacated his Sammamish 9 residence, and has provided inconsistent or misleading information about his whereabouts—all 10 shortly after personally guaranteeing FMT’s settlement obligation.” Dkt. 16 at 4. If, as BBC 11 suggests, Farber vacated the Sammamish residence after the settlement agreement was signed, 12 that might imply an intent to evade service, but no facts suggest the events happened in that 13 order. And it is unclear whether the business address Farber provided is intentionally false, as 14 BBC argues, or is merely mistaken or outdated. 15 BBC essentially argues that Farber is evading service because he cannot be found. But 16 Washington law is clear that alternative service is not authorized “merely because [plaintiffs] 17 were unable to locate [the defendant], despite diligent efforts.” Bruff v. Main, 943 P.2d 295 , 298 18 (Wash. Ct. App. 1997). Rather, plaintiffs must “set forth facts clearly suggesting an intent to 19 conceal.” Amana, 2023 WL 3172248 , at *3 (W.D. Wash. May 1, 2023) (denying motion for 20 alternative service where plaintiff stated he was “certain” defendant had been avoiding service 21 because of multiple unsuccessful attempts to locate him); see also Lumico Life Ins. Co. v. Adams, 22 No. C20-5515-MLP, 2021 WL 22587 , at *3 (W.D. Wash. Jan. 4, 2021) (plaintiff “merely 23 demonstrated it cannot locate Defendant based on the information available to it,” but did not 1 show the requisite intent to evade). 2 “Strict compliance” with the statute matters because due process requires that defendants 3 receive notice of actions against them, as a prerequisite to the Court’s exercise of jurisdiction 4 over them. Pascua, 108 P.3d at 1257–58. Alternative service therefore “must not be based on 5 conclusory statements”; the court “must closely scrutinize the facts provided.” Id. Although BBC 6 has made efforts to serve Farber, it has not established strict compliance with RCW 4.28.100. 7 The Court therefore DENIES without prejudice BBC’s motion for alternative service of 8 the complaint and summons. However, because the efforts to serve Farber to date meet the good 9 cause standard under Rule 4(m), the Court GRANTS BBC’s request to extend the time to effect 10 service. The deadline for service is extended to December 22, 2025. BBC may file a renewed 11 motion for alternative service if additional attempts to locate and serve Farber have not borne 12 fruit by then. Any such motion should establish that all of the requirements of RCW 4.28.100 13 have been satisfied, including the requirements to “stat[e] that [the affiant] believes that the 14 defendant is not a resident of the state, or cannot be found therein” and to “deposit[] a copy of 15 the summons (substantially in the form prescribed in RCW 4.28.110) and complaint in the post 16 office.” 17 DATED this 19th day of November, 2025. 18 A [19] BRIAN A. TSUCHIDA United States Magistrate Judge