United States District Court, M.D. Pennsylvania
June 17, 2005.
JUAN CASTILLO, Plaintiff
US XPRESS, INC., US XPRESS ENTERPRISES, INC. and DANNY K. RICHISON, Defendants.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On March 7, 2003, Plaintiff Juan Castillo was involved in a
vehicle collision when a tractor trailer allegedly owned by
Defendant US Xpress, Inc. and purportedly driven by Defendant
Danny Richison collided with a 1988 Oldsmobile. Plaintiff was
driving the Oldsmobile at the time of the accident. On February
28, 2005, Plaintiff Castillo filed a complaint against Defendants
US Xpress, Inc., US Xpress Enterprises, Inc., and Danny K.
Richison. (Dkt. Entry 1). Since filing the complaint, Mr.
Castillo has been unable to effect service of process on Mr. Richison. On May 31, 2005, Mr. Castillo filed a motion for
service by publication with an attached affidavit. See Pl.'s Mot.
for Publ., Affidavit, Dkt. Entry 6.
As set forth in Plaintiff's affidavit, the investigation
performed to locate Mr. Richison was as follows: (1) a certified
letter to Mr. Richison's last known address, returned
undeliverable; (2) a search of phone directories in Muncie,
Indiana; (3) a voter registration search in the state of Indiana;
(4) a search for pilot licenses, aircraft or undocumented
vehicles; and (5) the retention of a private
investigator.*fn1 All of these measures were unavailing,
leaving the plaintiff unable to locate Mr. Richison. The
affidavit stated that the plaintiff knew of no other address
where the defendant could be served. The affidavit also asserted
that service at Mr. Richison's last known address would be
"fruitless" because it was a truck driving school. Lastly, the
plaintiff averred that not only was Defendant Richison either
deceased or unable to be found, but the identity of his heirs,
executors, administrators or assigns was unknown as
Federal law dictates that service is to be effected on
individuals according to state law where the district court is
located, as provided by Federal Rule of Civil Procedure 4(e)(1):
service upon an individual . . . may be effected in
any judicial district of the United States: (1)
pursuant to the law of the state in which the
district court is located . . . for the service of a
summons upon the defendant in an action brought in
the courts of general jurisdiction of the
State. . . . FED. R. Civ. P. 4(e)(1). Pennsylvania Rule of Civil
Procedure 400, et seq. details the manner in which
process is to be effected in Pennsylvania. When
personal service is not possible, Pennsylvania Rule
of Civil Procedure 430 sets forth the necessary
criteria for a plaintiff to seek service of process
by publication. If the plaintiff cannot serve process
on the defendant, the plaintiff must file a motion
for publication with an attached affidavit. PA. R.
CIV. P. 430(a). The affidavit must describe the
efforts of the plaintiff to locate the defendant and
list why service could not be made. Id. If the
court grants the motion, the publication shall be
made once in a legal publication and once in a
generally circulated county newspaper.*fn3 PA.
R. CIV. P. 430(b)(1). Service by publication may also
be generally made upon a party-in-interest's heirs
and assigns if it is asserted in the complaint or
affidavit that their identity is unknown. PA. R. CIV.
The plaintiff must make a good faith effort to determine the
location of the defendant before a court will grant service by
publication. Kittanning Coal Co., Inc. v. Int'l Mining Co.,
Inc., 551 F. Supp. 834, 836 (W.D. Pa. 1982). The good faith
efforts must be described in the plaintiff's affidavit. PA. R. CIV. P. 430(a). Some examples of
good faith are: "(1) inquiries of postal authorities . . ., (2)
inquiries of relatives, neighbors, friends and employees of the
defendant, and (3) examinations of local telephone directories,
voter registration records, local tax records and motor vehicle
records." PA. R. CIV. P. 430(a) advisory committee's note. The
efforts that constitute good faith measures are determined on a
case-by case basis. Otterson v. Jones, 690 A.2d 1166, 1168 (Pa.
Super. 1997). The advisory committee note to Pennsylvania Rule of
Civil Procedure 430 is not an exhaustive list of the measures
used to attempt service on a defendant, but the rule does require
more than a "mere paper search." Grove v. Guilfoyle,
222 F.R.D. 255, 256 (E.D. Pa. 2004).
In Grove, the plaintiff unsuccessfully attempted to locate
the defendant through: (1) certified and regular mail at the
address the defendant provided at the time of the action; (2)
contacting the co-defendant's counsel; and (3) contacting the
United States Postal Service for defendant's new address. Id.
at 256. The Grove court stated that although the plaintiff made
some unsuccessful attempts to locate the defendant, the plaintiff
did not take adequate measures to determine the defendant's
location because "Plaintiff's Petition does not describe any
efforts to serve Defendant Guilfoyle personally or in any manner
permitted under Massachusetts law." Id. The plaintiff also
could have proven a good faith effort had he examined public
documents, contacted the defendant's friends and neighbors, and
checked the local telephone directories. Id. at 257. The
Grove court would not issue service by publication because, in the context of the case, the plaintiff did not make a
good faith effort to effectuate service. Id.
In Deer Park Lumber Inc., v. Major, 559 A.2d 941 (Pa.Super.
1989), the court held that the plaintiff did not use good faith
to locate and serve notice on the decedent's heirs regarding an
action to quiet title. Id. at 946. The plaintiff had searched
Wyoming County public records to locate the decedent's heirs and
in the process found the decedent's deed listing an address in
Luzerne County. Id. at 945. Although the plaintiff found the
deed, the plaintiff did not search for heirs in Luzerne County.
Id. A subsequent search for heirs by a third party interested
in obtaining the property located the decedent's heirs within
approximately one hour, illustrating the plaintiff's lack of good
faith effort. Id. at 946.
In the present case, it cannot be concluded that Plaintiff
exercised due diligence in locating Mr. Richison. He did not
contact the United States Post Office regarding the defendant,
and there is no indication as to what the private investigator
did to try to locate Mr. Richison. Plaintiff's affidavit did not
assert that he contacted the truck driving school to determine if
Mr. Richison had a forwarding address or to locate Mr. Richison's
friends who may have known his location.
ACCORDINGLY, IT IS HEREBY ORDERED THAT:
1. Plaintiff's Motion for Service by Publication
(Dkt. Entry 6) is DENIED, without prejudice. 2. Plaintiff may move again for leave to serve by
publication refile after detailing the additional
steps taken in good faith to attempt to locate and
effect service upon Defendant Richison.