Opinion
No. CV-20-02184-PHX-JAT
02-11-2021
Einstein Associates LLC, Plaintiff, v. DAP Industries LLC, Defendant.
ORDER
Pending before the Court is Plaintiff Einstein Associates LLC's Motion for Alternative Service (Doc. 12). The Court now rules on the motion.
Federal Rule of Civil Procedure ("Federal Rule") 4(e)(1) provides, in relevant part, that "[u]nless federal law provides otherwise, 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." See also Fed. R. Civ. P. 4(h)(1)(A). Arizona Rule of Civil Procedure ("Arizona Rule") 4.1(k)(1) provides that a court may allow for alternative means of service "[i]f a party shows that the means of service provided in Rule 4.1(c) through Rule 4.1(j) are impracticable."
Plaintiff argues it has demonstrated that service by traditional means is impracticable because its process server has been repeatedly unable to serve a representative of Defendant, and Defendant's statutory agent has not responded to an email requesting waiver of service. (Id. at 2). The Court agrees.
As relevant here, Arizona law requires a showing that both personal service and requesting a waiver of service are impracticable before allowing alternative service. See Ariz. R. Civ. P. 4.1(c), (i), (k). Plaintiff meets this burden.
First, Plaintiff demonstrates that personal service is impracticable. Plaintiff includes a report from its process server reflecting three attempts to serve Defendant's statutory agent at three different addresses. (Doc. 12-1 at 5) The first two attempts were made at addresses listed on the Arizona Corporation Commission (ACC) website as belonging to Defendant's statutory agent. (Id. at 4, 5). The process server report indicates that the first attempt was unsuccessful because "the Leasing Office . . . informed [the process server] that the Agent is not listed as the current resident" of the apartment and "they cannot grant [the process server] access." (Id. at 5). The second attempt failed because the "Leasing office/security would not grant [the process server] access" to the building. (Id.). The process server also attempted to serve Defendant at a building listed on the return address of a package that Plaintiff received from Defendant. (Id. at 3). This third attempt failed because "[t]he Statutory Agent no longer lives [t]here." (Id. at 5).
Because the first two attempts resulted not only in an inability to serve Defendant, but a complete lack of access to the buildings, the Court finds that additional attempts at personal service at either of these two addresses would not serve any practical purpose. Nor would further attempts at the third building where the statutory agent no longer lives.
Next, Plaintiff also attempted to request a waiver of service, to no avail. After receiving an email response from Defendant's statutory agent regarding a cease and desist letter, Plaintiff sent a request for waiver of service to that email address and has received no reply. (Id. at 2, 6). The Court finds that this email met the requirements of a request for a waiver of service. The email was in writing, and addressed to Defendant's statutory agent, included the name of the Court, the relevant forms and pleadings, was dated, and Defendant has had more than 30 days to respond. See Fed. R. Civ. P. 4(d). Further, the Court finds that because Defendant's statutory agent has previously replied to Plaintiff from this email address, the email address is an "other reliable means" of sending the waiver request. See id. 4(d)(1)(G).
Arizona Rule 4.1(c) sets forth the requirements of a request for a waiver of service. Here, Plaintiff sought waiver under Federal Rule 4(d). Though the Arizona and Federal Rules are not identical, the Court finds that Defendant's refusal to waive under the Federal Rule is evidence that Defendant would also refuse to waive under the Arizona Rule, thereby satisfying the prerequisite of showing waiver under Arizona Rule 4.1(c) is impracticable.
Finally, the Court finds that sending process to Defendant's statutory agent through both U.S. mail and email is likely to make Defendant aware of the commencement of this suit. See Ruffino v. Lokosky, 425 P.3d 1108, 1113, ¶ 16 (Ariz. Ct. App. 2018) (noting that "modern methods of communication, especially email, were more likely to give [the defendant] notice" and, consequently, "the best means practicable to alert [the defendant] of the suit and comply with due process was by alternative service").
Accordingly,
IT IS ORDERED that Plaintiff's Motion for Alternative Service (Doc. 12) is GRANTED. Plaintiff may serve Defendant by sending a copy of the summons, complaint, and this Order to Defendant's statutory agent via both U.S. Mail to both addresses listed on the ACC website and email to devinhochberg@gmail.com.
IT IS FURTHER ORDERED sua sponte extending the deadline for Plaintiff to serve Defendant to February 19, 2021.
Dated this 11th day of February, 2021.
/s/_________
James A. Teilborg
Senior United States District Judge