United States District Court, D. Utah, Central Division
MARIA E. WINDHAM, as Receiver for MARQUIS PROPERTIES, LLC, Plaintiff,
NATHANIEL ROBERT ALLEN, et al., Defendants.
N. Parrish District Judge
MEMORANDUM DECISION AND ORDER FOR ALTERNATIVE
B. Pead U.S. District Court Magistrate Judge
matter is before the court on Plaintiff's Ex Parte
Motion for Service by Other Means
(“Motion”). In support of the Motion, Plaintiff
submitted, in relevant part, a Declaration from David Gallup
(“Gallup Declaration”) (ECF No. 116-1), Declaration
of Whitney Hulet Krogue (“Krogue Declaration”)
(ECF No. 116-4), and Supplemental Ex Parte Motion for Service
by Other Means (“Supp. Filing”) (ECF No. 126)
containing potential addresses and phone numbers associated
with Ryan L. Farr (“Defendant”). Plaintiff
asserts she has been unable to locate and serve the Defendant
by traditional means despite good faith efforts and thus
requests this court allow service on Mr. Brett Anderson
(“Attorney Anderson”), who served as defense
counsel for the Defendant in a state court action, case no.
161908988. For the reasons discussed below, the court will
authorize Plaintiff to serve the complaint and summons using
the alternative means as set forth in this Order.
court may allow service of process as permitted by Utah law.
See Fed. R. Civ. P. 4(e)(1). Utah law provides:
If the identity or whereabouts of the person to be served are
unknown and cannot be ascertained through reasonable
diligence, if service upon all of the individual parties is
impracticable under the circumstances, or if there is good
cause to believe that the person to be served is avoiding
service, the party seeking service may file a motion to allow
service by some other means. An affidavit or declaration
supporting the motion must set forth the efforts made to
identify, locate, and serve the party, or the circumstances
that make it impracticable to serve all of the individual
Utah R. Civ. P. 4(d)(5)(A). “A determination of
reasonable diligence thus properly focuses on the
plaintiff's efforts to locate the defendant. Relevant
factors may include the number of potential defendants
involved, the projected expense of searching for them, and
the number and type of sources of available information
regarding their possible whereabouts ....”
Commonwealth Property Advocates, LLC., v. National City
Mortgage, et al., 2010 WL 465843, *1 (D. Utah 2010)
(citing to Jackson Constr. Co., Inc. v. Marrs, 100
P.3d 1211, 1215 (Utah 2004)). This “reasonable
diligence standard does not require a plaintiff to exhaust
all possibilities to locate and serve a defendant. It does,
however, require more than perfunctory performance.”
Plaintiff has engaged in more than perfunctory performance in
her attempt to identify a valid, active address for the
Defendant. Plaintiff retained Icekey Investigations to locate
and serve the Defendant. David Gallup, a Private Investigator
with Icekey Investigations, conducted a search to locate a
valid address for the Defendant but he was unable to locate
an active, valid address. (ECF No. 126.) Mr. Gallup
identified approximately thirteen (13) possible addresses for
the Defendant but did not locate Defendant at those addresses
or any person who was willing to verify that the Defendant
did reside at any of the addresses. Id. Mr. Gallup
attempted to locate the Defendant by reaching out to prior
employers and neighbors to no avail. (ECF No. 116-1.) Mr.
Gallup also contacted the Defendant's father, Kal Farr,
who claimed that he did not have his son's address and
indicated he would not obtain authorization from his son to
accept service on his behalf. Id. Kal Farr suggested
his son was aware of this case and suggested Mr. Gallup
contact Attorney Anderson. Id. In addition, Mr.
Gallup left messages for the Defendant without receiving a
return phone call. (ECF No. 126.)
Krogue spoke with Attorney Anderson on May 23, 2018 and
requested that he accept service on the Defendant's
behalf. (ECF No. 116-4.) Attorney Anderson declined to accept
service unless he received permission from the Defendant.
Id. Mrs. Krogue has not received any confirmation
from Attorney Anderson that he received permission.
Id. Mrs. Krogue does not confirm for the court that
Attorney Anderson had even been consulted by the Defendant
about this matter. Id. The court does not support
serving the summons and complaint on Attorney Anderson when
he does not have authorization to accept service and when it
is unclear to the court if he was even consulted by the
Defendant about this pending action.
this, Plaintiff did engage in reasonable diligent efforts to
ascertain the Defendant's whereabouts to no avail and it
appears the Defendant could be avoiding service. Therefore,
good cause exits to permit service using alternative means.
with Utah R. Civ. P. 4 when service by other means is
warranted, “…the court will order service of the
complaint and summons by means reasonably calculated, under
all the circumstances, to apprise the named parties of the
action.” Utah R. Civ. P. 4(d)(5)(B). “The
court's order must specify the content of the process to
be served and the event upon which service is complete.
Unless service is by publication, a copy of the court's
order must be served with the process specified by the
court.” Id. Therefore, Plaintiff shall serve a
copy of the complaint, summons and this Memorandum Decision
and Order, as follows:
1. Certified mail and regular mail to 6504 N. 10900 Highland,
Utah, 84003 (which Mr. Gallup identified as the
Defendant's father's address and a location where the
Defendant recently resided).
Plaintiff has complied with the foregoing and provided proof
of service to ...