United States District Court, D. Utah, Central Division
Campbell District Judge.
MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE.
Judge Tena Campbell referred this case to Chief Magistrate
Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). Before the court is Plaintiff Maverick
Trading, Inc.'s (“Plaintiff”) Motion for
Leave to Obtain Service of Process Through Alternative Means
against Defendant Emmett Moore and Defendant
“Defendants”). Having reviewed Plaintiff's motion
and the relevant law, the court renders the following
Memorandum Decision and Order.
lawsuit is an action for defamation per se, tortious
interference with prospective economic advantage, product
disparagement, trade libel, deceptive practices, and false
light against Defendants for alleged false statements
published on May 27, 2017 in a blog post on Defendants'
website. Plaintiff has made numerous attempts to locate and
effectuate service of process on Defendants. Plaintiff's
attempts include sending a demand letter to 3476 Don Alberto
Dr., Carlsbad, CA 92010 which was subsequently returned with
a handwritten message on the envelope stating Mr. Moore no
longer lived at that address. Upon identifying four possible
residences of Mr. Moore, Plaintiff hired CalExpress Attorney
Services (“CalExpress”) to serve Mr. Moore which
resulted in four unsuccessful service attempts by CalExpress
at the following properties: Fieldstone, Rosario, Cass, and
Garnet. On June 12, 2019, CalExpress informed
Plaintiff's counsel that it believed it made contact with
Defendant at the Cass Property but the individual was evasive
and refused to give his name. After viewing a photograph of
Mr. Moore, CalExpress confirmed the person served matched the
identity of the person in the photograph.
24, 2019, Plaintiff filed proof of service with the court;
however, Plaintiff received phone calls soon after from
individuals indicating the person CalExpress served may not
have been Mr. Moore. Based on the previous attempts to
effectuate service and the recent information regarding the
June 12th service, Plaintiff believes that Defendants are
evading service. Therefore, pursuant to Rule 4(e)(1) of the
Federal Rules of Civil Procedure and Rule 4(d)(5)(A) of the
Utah Rules of Civil Procedure, Plaintiff seeks leave of the
court to serve Defendants alternatively by sending the
summons and complaint to Defendants' (1) nine known email
addresses, (2) Twitter account via private message, and (3)
website via the contact submission page.
federal rules permit service in accordance with the laws of
the forum state. See Fed. R. Civ. P. 4(e)(1),
4(h)(1)(A). Unless a court otherwise directs, Utah law
requires service either by personal delivery or certified
mail, return receipt requested. Utah R. Civ. P. 4. However,
when a plaintiff has exercised due diligence in attempting to
ascertain a defendant's whereabouts, or if there is good
cause to believe that the person to be served is evading
service, a court may authorize service by other means. Utah
R. Civ. P. 4(d)(5)(A). A party exercises reasonable diligence
if they “take advantage of readily available sources of
relevant information” to locate defendants” and
demonstrate “persistent efforts” to serve the
defendant. C504750P LLC v. Baker, 2017 UT App 36,
¶ 10, 397 P.3d 599. Moreover, in deciding a motion for
alternative service, the court is mindful that any method of
service authorized by the court must be reasonably
calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford
them an opportunity to present their objections. Id.
at ¶ 9.
these standards in mind, the court finds Plaintiff has
exercised reasonable due diligence to locate and serve
Defendants and that good cause exists to believe Defendants
are avoiding service of process. Accordingly, Plaintiff's
request for alternative service in this case is justified.
Service shall be deemed complete by sending the complaint,
summons, and a copy of this order to Defendants (1) nine
email addresses, (2) Twitter account via private message, and
(3) website via the contact submission page. See F.T.C.
v. PCCare247 Inc., No. 12 CIV. 7189 PAE, 2013 WL 841037,
at *4 (S.D.N.Y. Mar. 7, 2013) (authorizing alternative
service by email and Facebook). The court is satisfied that
these alternative methods of service are sufficient to place
Defendants on notice of the pendency of this action and
afford Defendants the opportunity to respond. Upon completion
of service, Plaintiff shall file an affidavit with the court
affirming completion of service pursuant to this order.
on the foregoing, Plaintiffs Motion for Leave to Obtain
Service of Process Through Alternative Means is
IS SO ORDERED.