Alpha Property & Casualty Insurance Company v. Freedom Movers LLC

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Alpha Property & Casualty Insurance No. CV-19-05660-PHX-DWL Company, 10 ORDER Plaintiff, [11] v. [12] Freedom Movers LLC, et al., [13] Defendants. [14] 15 Pending before the Court is Plaintiff Alpha Property & Casualty Insurance 16 Company’s (“Alpha”) motion for service by publication and request for extension of time 17 to serve Defendant Robert Tyler. (Doc. 14.) For the following reasons, the motion for 18 service by publication will be denied and the request to extend time for service will be 19 granted. 20 BACKGROUND 21 In this declaratory judgment action, Alpha seeks confirmation that it has no duty to 22 defend or indemnify in a lawsuit that is currently pending in Illinois state court. The 23 underlying lawsuit arises from an April 2017 car accident. (Doc. 10 ¶¶ 13-14.) Tommy 24 Sawdon was a passenger in a vehicle owned by Defendant Freedom Movers, LLC 25 (“Freedom Movers”) and driven by Defendant James Vaughn. (Id. ¶¶ 12-13.) Sawdon 26 alleges that Vaughn negligently caused the accident when he crossed the center median 27 and collided with another vehicle. (Id. ¶ 14.) Sawdon further alleges that Tyler negligently 28 entrusted the vehicle to Vaughn. (Id. ¶ 17.) Vaughn and Tyler are the only members of 1 Freedom Movers and all three defendants are domiciled in Arizona. (Id. ¶¶ 6, 8.) Alpha 2 issued an insurance policy to Freedom Movers and filed this lawsuit to obtain a declaratory 3 judgment that it has no duty to defend or indemnify Freedom Movers, Vaughn, or Tyler. 4 (Id. at 10-11; Doc. 1.) 5 On November 20, 2019, Alpha initiated this lawsuit by filing a complaint. (Doc. 1.) 6 On December 6, 2019, Alpha served Vaughn. (Doc. 11.) 7 On December 12, 2019, Alpha served Freedom Movers. (Doc. 12.) 8 Alpha has been unsuccessful in its efforts to serve Tyler. (Doc. 14 at 2.) Those 9 efforts include six in-person attempts at two of Tyler’s known addresses. (Id.) Alpha also 10 mailed four packages to Tyler (two to each address) containing a Notice and Request for 11 Waiver of Service. (Id. at 2-3.) 12 On January 27, 2020, Alpha’s investigator tracked Tyler to a business center in 13 Mesa, Arizona. (Doc. 14-6.) When the investigator told the receptionist that she was there 14 to serve legal process on Tyler, the receptionist said there was no such person working 15 there. (Id.) Nevertheless, the investigator observed a vehicle registered to Mr. Tyler in the 16 business center’s parking lot and eventually observed a man enter the vehicle. (Id.) This 17 admitted to the investigator that Tyler had left the business center in an Uber after being 18 tipped off by the receptionist that a process server was looking for him. (Id.) 19 On January 29, 2020, a second attempt to serve Tyler at this business center was 20 met with a refusal to open the door. (Id.) 21 On February 11, 2020, Alpha filed its motion for service by publication and for an 22 extension of time. (Doc. 14.) 23 I. Motion For Service By Publication 24 Alpha has requested that the Court enter an order authorizing service by 25 publication—specifically, by publishing a notice in the “Arizona Capital [sic] Times.” 26 (Doc. 14 at 4.) 27 Rule 4(e) of the Federal Rules of Civil Procedure provides that “an individual . . . 28 may be served in a judicial district of the United States by . . . following state law for 1 serving a summons in an action brought in courts of general jurisdiction in the state where 2 the district court is located or where service is made.” Arizona law, in turn, authorizes 3 “Alternative Means of Service,” which is addressed in Rule 4.1(k) of the Arizona Rules of 4 Civil Procedure, and “Service by Publication,” which is addressed in Rule 4.1(l) of the 5 Arizona Rules of Civil Procedure (but which is also cross-referenced in Rule 4.1(k)(3)). 6 There is conflicting case law about whether courts applying Arizona law may 7 approve requests to serve by publication. Some Arizona courts (and federal courts 8 applying Arizona law) have concluded that it is impermissible for a party to seek such 9 authorization. See, e.g., Ritchie v. Salvatore Gatto Partners, L.P., 222 P.3d 920 , 923 n.4 10 (Ariz. Ct. App. 2010) (stating that “[t]he decision whether to pursue personal service or 11 service by publication is that of the plaintiff, not the court” and that “the court does not 12 preauthorize service by publication”); Tunoa v. Corr. Corp. of Am., 2013 WL 12327363 , 13 *2 (D. Ariz. 2013) (“Because Plaintiff does not need leave of court to serve Dwight by 14 publication, the Court will deny Plaintiff’s motion for leave to serve Dwight by 15 publication.”). Other courts, however, have suggested that authorization isn’t mandatory— 16 which is different from saying that a request for authorization is verboten. See, e.g., Ruffino 17 v. Lokosky, 425 P.3d 1108 , 1110 & n.1 (Ariz. Ct. App. 2018) (observing that party had 18 filed a “motion request[ing] leave to serve by publication” and clarifying in a footnote that 19 “[n]either the former nor current rule require a party to seek leave of the court before 20 serving by publication”). And still other courts have considered and approved motions for 21 authorization to serve by publication. See, e.g., Master Fin., Inc. v. Woodburn, 90 P.3d 22 1236, 1237 (Ariz. Ct. App. 2004) (“After concluding that personal service was not possible, 23 MFI obtained an order from the trial court authorizing service by publication.”); U.S. 24 Commodity Futures Trading Comm'n v. Weber, 2010 WL 2473580 , *1 (D. Ariz. 2010) 25 (“The Court will grant Plaintiff’s motion for an order for publication of process.”). 26 In the Court’s view, the best reading of Rules 4.1(k) and 4.1(l) is that it is 27 permissible for a party to file a motion seeking authorization to serve by publication. As 28 noted, Rule 4.1(k) governs requests to utilize “alternative means of service.” Subdivision 1 (1) of Rule 4.1(k) provides that if a party shows that other means of service “are 2 impracticable, the court may—on motion and without notice to the person being served— 3 order that service be accomplished in another manner.” And subdivision (3) of Rule 4.1(k) 4 identifies “Service by Publication” as once such permissible service method and then 5 clarifies that a “party may serve by publication only if” certain additional requirements are 6 met. The best way to harmonize these provisions is to conclude that service by publication 7 is one of multiple “alternative means of service” available under Arizona law and that 8 judicial approval “may” be sought for any of those alternative service methods if the 9 necessary showing is made “on motion.” Cf. Corley v. United States, 556 U.S. 303 , 314 10 (2009) (“[O]ne of the most basic interpretive canons . . . [is] that [a] statute should be 11 construed so that effect is given to all its provisions, so that no part will be inoperative or 12 superfluous, void or insignificant.”) (quotation omitted). Finally, although Rule 4.1(l) 13 doesn’t say anything about judicial approval, that silence isn’t dispositive because Rule 14 4.1(l) simply sets forth additional requirements—beyond those set forth in Rule 4.1(k)— 15 necessary to achieve effective service by publication.1 16 Nevertheless, on the merits, Alpha’s request for authorization to serve by 17 publication will be denied. Even though Alpha has established that Tyler is likely evading 18 service, this doesn’t mean that service by publication is appropriate. Under Arizona law, 19 service by publication is permissible “only if” (1) “the person to be served has intentionally 20 avoided service of process” and (2) “service by publication is the best possible means 21 practicable in the circumstances for providing the person with notice of the action’s 22 commencement.” See Ariz. R. Civ. P. 4.1(l)(1). Here, Alpha has provided no explanation [23] 1 The Court further notes that Ritchie involved a tax lien foreclosure proceeding. 24 Such proceedings are governed in part by A.R.S. § 42-18206, which provides that “if a person who redeems has been served personally or by publication in the action, . . . 25 judgment shall be entered in favor of the plaintiff.” Thus, the Ritchie court stated that its task was to address “the interaction between § 42-18206 and [what is now Rule 4.1(k)].” 26 Ritchie, 222 P.3d at 306 . In other words, Ritchie involved the interpretation of a unique statute that expressly authorizes parties to choose between personal service and service by 27 publication. Given this backdrop, the footnote in Ritchie stating that “[t]he decision whether to pursue personal service or service by publication is that of the plaintiff, not the 28 court,” id. at 307 n.4, shouldn’t necessarily be viewed as a broad statement prohibiting requests for judicial approval for service by publication in other contexts. 1 for why the Arizona Capitol Times—a specialty publication geared toward “[g]overnment 2 and business leaders in Arizona” that is only published once per week and reaches 3 approximately “5,250 readers per issue,” see https://azcapitoltimes.com/advertising/—is 4 the publication most likely to come to Tyler’s attention. Additionally, Alpha’s moving 5 papers don’t reveal whether its investigator has attempted to discern Tyler’s email address, 6 which would likely provide a better pathway to alternative service than publication. Cf. 7 Ruffino, 425 P.3d at 1113 (“Even if . . . Lokosky intentionally avoided service, . . . due 8 process impose[s] a requirement that service by publication be the best means practicable 9 to provide notice to the interested party. Given our present society, . . . modern methods 10 of communication, especially email, [are] more likely to give [a service-evading party] 11 notice of a suit than publication in a newspaper distributed in a rural area 70 miles from 12 Lokosky’s Scottsdale home.”). Finally, it appears that Alpha has now discovered Tyler’s 13 true work address (even though he is pretending not to work there), and service upon the 14 receptionist may also qualify as an alternative service method that is more likely to provide 15 actual notice to Tyler than running an ad in the Arizona Capitol Times. 16 II. Request For Extension Of Time To Serve 17 Alpha requests an extension of time to serve Tyler. Rule 4(m) of the Federal Rules 18 of Civil Procedure provides that, although a defendant generally must be served within 90 19 days of when the complaint was filed, “if the plaintiff shows good cause for the failure [to 20 timely serve], the court must extend the time for service to an appropriate period.” 21 Additionally, district courts have broad discretion under Rule 4(m) to extend the time for 22 service even in the absence of good cause. In re Sheehan, 253 F.3d 507, 512 (9th Cir. 23 2001). “[G]ood cause generally means that service has been attempted but not completed, 24 that plaintiff was confused about the requirements of service, or that plaintiff was prevented 25 from serving defendants by factors beyond his control.” Chemehuevi Indian Tribe v. 26 Wilson, 181 F.R.D. 438, 440 (N.D. Cal. 1998) (quotation omitted). The Ninth Circuit has 27 repeatedly mentioned that a defendant’s evasion of service is an “obvious” example of 28 good cause. See, e.g., Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987); Wei v. 1|| State of Hawaii, 763 F.2d 370, 371 (9th Cir. 1985). 2 Here, Alpha has established that Tyler is likely evading service. Thus, the Court || will grant Alpha’s request to extend time for service by 90 days. 4 Accordingly, IT IS ORDERED that Alpha’s motion (Doc. 14) is granted in part 5 || and denied in part. Alpha is not authorized to serve Tyler by publication in the Arizona 6 || Capitol Times, but Alpha is granted a 90-day extension of time to serve Tyler and shall 7\| have until June 2, 2020, to complete such service. 8 Dated this 4th day of March, 2020. [9] 10 Po 12 United States District Judge [28] -6-