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Countrywide Home Loans, Inc. v. Stringer


August 15, 2008


The opinion of the court was delivered by: Judge Vanaskie



On November 13, 2007, Plaintiff Countrywide Home Loans, Inc., filed a mortgage foreclosure action against Defendants Daniel N. Stringer and Marianne Stringer alleging Defendants defaulted on their obligation to repay a loan secured by a mortgage on their residence at 156 Lake of the Pines, East Stroudsburg, Pennsylvania 18301 ("East Stroudsburg Address"). (Dkt. Entry 1.)*fn1 Initially, Plaintiff attempted to serve the complaint on Defendants at the East Stroudsburg Address. The Monroe County sheriff unsuccessfully attempted service on December 11, 2007. (Sheriff Serv. Process Receipt, & Aff. of Return ("Aff. of Return"), Ex. A to Pl.'s Mot. Alternate Serv. Process Def. Marianne Stringer ("Pl.'s Mot."), Dkt. Entry 13-2.) The next day, although Defendants were not present, the sheriff served the complaint on nineteen-year-old Michael Diroski, a tenant occupying the property. (Pl.'s Mot., Dkt. Entry 13, ¶ 2.) According to the return of service, Mr. Diroski was served as a "person in charge" of the East Stroudsburg Address. (Aff. of Return.) The return does not indicate, however, whether Defendants continued to reside at the East Stroudsburg Address as of December 12, 2007.*fn2

Because Defendants were not served at the East Stroudsburg Address, and the property was occupied by Mr. Dirsoki, Plaintiff concluded service was invalid and searched for another address for Defendants. (Pl.'s Mot. ¶ 2; Status Report, Jan. 9, 2008, Dkt. Entry 4.) On or about December 20, 2007, Plaintiff uncovered a new address for Defendants at 20 Toby Lane, Trenton, New Jersey 08620 ("New Jersey Address"). (Pl.'s Mot. ¶ 3; Status Report, Jan. 9, 2008.) B & R Services, Inc., a private process server employed by Plaintiff, unsuccessfully attempted to serve Mrs. Stringer six times between December 28, 2007, and January 7, 2008. (Aff. of Due Diligence, Ex. B to Pl.'s Mot., Dkt. Entry 13-3.) On each occasion, no one was present nor were vehicles parked at the residence. (Id.) B & R's affidavit indicates that on December 28, 2007, when the first attempt was made, neighbors verified the New Jersey Address as Defendants' residence. (Id.) During the final three attempts, the server observed mail bearing Mrs. Stringer's name accumulating by the front door. (Id.)

On February 9, 2008, Mr. Stringer was served with process at the New Jersey Address by certified mail, return receipt requested. (Aff. of Serv., Dkt. Entry 5.) The record contains no evidence that Plaintiff attempted to serve Mrs. Stringer by mail at the New Jersey Address. Indeed, the record reveals no further attempts by Plaintiff to serve Mrs. Stringer after January 7, 2008, at either the East Stroudsburg Address or the New Jersey Address.*fn3

On July 18, 2008, Plaintiff filed a Motion for Alternate Service of Process upon Defendant Marianne Stringer by Regular Mail, Certified Mail and Posting. (Dkt. Entry 13.)*fn4

Plaintiff contends that it attempted to serve Mrs. Stringer personally at the East Stroudsburg and New Jersey Addresses without success. (Id. ¶ 2, 5.) Furthermore, Plaintiff argues that it made a good faith effort to ascertain the whereabouts of Mrs. Stringer, including an inquiry with the postal service; examination of local telephone directories, 411 assistance, Internet records, tax records, and Social Security death records; and phone interviews of neighbors. (Id. ¶¶ 6-11; Aff. of Good Faith Effort to Locate Defendant(s), Ex. C. to Pl.'s Mot., Dkt. Entry 13-4.)

Plaintiff, therefore, seeks a special order pursuant to Pennsylvania Rule of Civil Procedure 430(a) authorizing service by posting the complaint at the East Stroudsburg Address and by certified mail and regular mail to the New Jersey Address.

Federal Rule of Civil Procedure 4(e)(1) provides the option of serving the summons and complaint in a federal civil action by "following state law for serving [process] in an action brought in courts . . . in the state where the district court is located." In moving for a special order of service under Pennsylvania law, Plaintiff invokes Rule 430(a), which provides:

If service cannot be made under the applicable rule the plaintiff may move the court for a special order directing the method of service. The motion shall be accompanied by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the defendant and the reasons why service cannot be made.

Pa. R. Civ. P. 430(a). Service by special order is an extraordinary measure that is appropriate only after all other methods of service available under the rules have been exhausted. See Grove v. Guilfoyle, 222 F.R.D. 255, 257 (E.D. Pa. 2004) ("Alternative service is only appropriate when service 'cannot be made' under the applicable Rule, and only as a last resort." (quoting Pa. R. Civ. P. 430(a))); Johnson v. Jackson, No. Civ. A. 03-5737, 2004 WL 73729, at *1 (E.D. Pa. Jan. 6, 2004) ("Alternative methods of service are an 'option of last resort.'" (quoting Witherspoon v. City of Phila., 768 A.2d 1079, 1088 n.3 (Pa. 2001) (Newman, J., dissenting))). To prevail on its motion, Plaintiff must establish three elements: "'(1) an unsuccessful attempt to properly serve the defendant; (2) a good faith effort to locate the defendant; and, (3) a method of alternative service that is reasonably calculated to give actual notice to the defendant.'" HSBC Bank USA, Nat'l Ass'n v. Williams, No. 3:CV-06-306, slip order at 4 (M.D. Pa. Nov. 7, 2007) (Dkt. Entry 8) (order denying motion for service pursuant to special order of court) (quoting Fed. Home Loan Mortgage Corp. v. Stevens, No. 3:01-1932, 2001 WL 1528530, at *1 (M.D. Pa. Nov. 30, 2001)).*fn5

In this matter, Plaintiff has failed to show that "service cannot be made under the applicable rule." Pa. R. Civ. P. 430(a) (emphasis added). In this regard, the rule applicable to this matter is Rule 410(a), which provides that service of a complaint in a mortgage foreclosure action is governed by, inter alia, Rules 400 (service within the Commonwealth) and 404 (service outside the Commonwealth). See Pa. R. Civ. P. 410(a). As Plaintiff has evidence that Mrs. Stringer resides within and outside the Commonwealth, Plaintiff must attempt service under both rules. Subject to exceptions not relevant to this matter, Rule 400(a) provides that "original process shall be served within the Commonwealth only by the sheriff." Pa. R. Civ. P. 400(a). Rule 404 provides for service of original process outside the Commonwealth "(1) by a competent adult in the manner provided by Rule 402(a); (2) by mail in the manner provided by Rule 403[*fn6 ]; [or] (3) in the manner provided by the law of the jurisdiction in which the service is made." Pa. R. Civ. P. 404(1)-(3).*fn7

Here, although Plaintiff attempted service by sheriff on Mrs. Stringer at the East Stroudsburg Address, (see Aff. of Return), and service by competent adult (B & R Services) at the New Jersey Address, (see Aff. of Due Diligence), Plaintiff has offered no evidence that it attempted to serve Mrs. Stringer at the New Jersey Address by mail or pursuant to New Jersey law. Indeed, part of the relief sought by Plaintiff is an order allowing service at the New Jersey Address by certified and regular mail, which, as indicated above, is permitted by Rule 404 without prior court-approval. See also HSBC Bank USA, slip order at 6. Thus, Plaintiff should have attempted service by mail months ago, and its failure to do so is inexplicable in light of its successful service on Mr. Stringer by mail.*fn8 In any event, absent failed attempts to serve Mrs. Stringer by mail and pursuant to New Jersey law, Plaintiff is unable to show "service cannot be made under the applicable rule," a showing indispensable to judicial authorization of special service. See Grove, 222 F.R.D. at 256, 257 (denying plaintiff's motion for alternate service of out-of-state defendant, in part, because plaintiff had not exhausted all means of service prescribed by Rule 404); see also Calabro v. Leiner, 464 F. Supp. 2d 470, 473 (E.D. Pa. 2006) (denying plaintiff's motion for failure to undertake "practical efforts" to serve defendants; "no evidence that defendants are attempting to evade service; nor is there any other indication why future attempts at service, at different times or on different days, would be futile").

Because Plaintiff has not exhausted all methods of service under the applicable rules, its motion is premature, and thus service by special order is inappropriate at this juncture. If, however, Plaintiff attempts to serve Mrs. Stringer pursuant to Rule 404 without success, Plaintiff may re-file its motion for alternate service.*fn9 ACCORDINGLY, IT IS HEREBY

ORDERED THAT Plaintiff's Motion for Alternate Service of Process upon Defendant Marianne Stringer by Regular Mail, Certified Mail and Posting (Dkt. Entry 13) is DENIED, WITHOUT PREJUDICE.

Thomas I. Vanaskie United States District Judge

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