Opinion
No. CV-18-04080-PHX-DWL
02-20-2019
Amicia Lovelace, Plaintiff, v. Equifax Information Services LLC, et al., Defendants.
ORDER
Pending before the Court is Plaintiff's Motion to Extend the Summons and for Alternative Service of Quality Recovery Services, Inc. (Doc. 30). For the following reasons, the motion is granted in part and denied in part.
Plaintiff Amicia Lovelace filed the above-captioned lawsuit on November 15, 2018, and the summons for Defendant Quality Recovery Services, Inc. ("QRS") issued on the same day. (Doc. 4-1 at 1.) On December 4, 2018, Plaintiff's process server attempted to serve QRS at 11659 B Hwy 3 North, Hampton, GA 30228, but was unable to do so because the address does not exist. (Doc. 30-2.) On February 13, 2019, the deadline for service of the summons pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, Plaintiff filed the motion at hand, noting that she was unable to serve QRS at the only physical address that QRS provided to the State of Georgia and that she did not succeed in further attempts to obtain another address. (Doc. 30 at 3.) Plaintiff seeks a 60-day extension of the service deadline and also seeks leave of the Court to serve QRS by alternate means.
Rule 4(m) of the Federal Rules of Civil Procedure provides that if a defendant is not served within the specified timeframe, the Court must either "dismiss the action without prejudice against that defendant or order that service be made within a specified time." Moreover, "if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Id.
The Court finds that Plaintiff has shown good cause for the failure to serve QRS and grants Plaintiff's request for an additional 60 days in which to serve QRS.
Plaintiff further requests that the Court "permit service of process upon QRS by first-class U.S. mail to the Post Office box address that is currently on file with the State of Georgia . . . coupled with the filing of a Certificate of Mailing issued by the United States Postal Service." (Doc. 30 at 4.) Plaintiff failed to cite any laws or rules that would allow the Court to grant this request. (Id.)
Rule 4(e) of the Federal Rules of Civil Procedure provides, in relevant part, that an individual "may be served in a judicial district of the United States 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). A corporation or unincorporated association subject to suit under a common name may be served by the same means. Fed. R. Civ. P. 4(h)(1)(A).
Rule 4.2 of the Arizona Rules of Civil Procedure details the available state law procedures for serving process outside Arizona. It appears to the Court that there is only one permissible way to serve a limited liability company located outside of Arizona but within the United States, and that is "by delivering a copy of the summons and the pleading being served to a partner, an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant." Ariz. R. Civ. P. 4.2(h). It is not clear from the face of Rule 4.2(h) whether mailing a copy of the summons and the pleading to a Post Office box address, coupled with the filing of a Certificate of Mailing issued by the United States Postal Service, would satisfy the Rule. Cf. Barlage v. Valentine, 110 P.3d 371, 375 (Ariz. Ct. App. 2005) (holding that under certain circumstances, a postal service may be an actual agent for the purpose of receiving deliveries). Without the benefit of any briefing from Plaintiff, the Court will not decide whether Rule 4.2(h) permits the manner of service Plaintiff contemplates under the facts of this case.
Alternatively, Plaintiff may serve QRS by following Georgia law regarding service of process. Fed. R. Civ. P. 4(e)(1); Fed. R. Civ. P. 4(h)(1)(A). Again, in the absence of any briefing on the matter, the Court is disinclined to conduct extensive research on the requirements under Georgia law for service of process. Nevertheless, the Court notes that under Georgia law:
Whenever a limited liability company shall fail to appoint or maintain a registered agent in this state or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such limited liability company upon whom any process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with him or her or with any other person or persons designated by the Secretary of State to receive such service a copy of such process, notice, or demand. The plaintiff or his or her attorney shall certify in writing to the Secretary of State that the limited liability company failed either to maintain a registered office or appoint a registered agent in this state and that he or she has forwarded by registered or certified mail or statutory overnight delivery such process, notice, or demand to the most recent registered office listed on the records of the Secretary of State and that service cannot be effected at such office.Ga. Code Ann. § 14-11-209 (emphasis added). There does not appear to be any impediment preventing Plaintiff from serving QRS in accordance with this method.
The Court will thus deny without prejudice Plaintiff's request to serve QRS by "alternative means" that require leave of the Court. Plaintiff is encouraged to take advantage of the means that are available to her under Rule 4 of the Federal Rules of Civil Procedure, which encompass any means available to her under Arizona or Georgia law. If Plaintiff determines that she cannot serve QRS by any of those means, she may file, within 14 days of the date of this Order, a new motion for leave to serve by alternative means. That motion must clearly explain what rules or laws permit the Court to grant the relief requested. The Court notes that Rule 4.2(b) of the Arizona Rules of Civil Procedure permits a party to serve process outside Arizona, but within the United States, "in the same manner as provided in Rules 4.1(d) through (j)," which does not encompass Rule 4.1(k) (permitting a court to order that service of process within Arizona may be accomplished in a manner not otherwise allowed under the Rules).
The Court further notes that Rule 4.2(c) of the Arizona Rules of Civil Procedure addresses service by mail of a "person," whereas Rule 4.2(h) addresses service on a "corporation, partnership, or other unincorporated association." The Court assumes (without deciding) that Rule 4.2(c) does not provide a means of serving QRS under Arizona law.
Accordingly,
IT IS ORDERED granting in part and denying in part Plaintiff's Motion to Extend the Summons and for Alternative Service of Quality Recovery Services, Inc. (Doc. 30).
IT IS FURTHER ORDERED that the deadline for Plaintiff to serve QRS is extended to 60 days from the date of this Order.
IT IS FURTHER ORDERED that Plaintiff's request for leave to effectuate "service of process upon QRS by first-class U.S. mail to the Post Office box address that is currently on file with the State of Georgia . . . coupled with the filing of a Certificate of Mailing issued by the United States Postal Service" is denied without prejudice.
IT IS FURTHER ORDERED that if Plaintiff determines that she cannot serve QRS by any of the means available to her, she may file, within 14 days of the date of this Order, a new motion for leave to serve by alternative means. The motion must clearly explain the rules and/or laws that would permit the Court to grant the relief she seeks.
Dated this 20th day of February, 2019.
/s/_________
Dominic W. Lanza
United States District Judge