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Olympic Steel, Inc v. Pan Metal & Processing

March 2, 2012

OLYMPIC STEEL, INC., PLAINTIFF,
v.
PAN METAL & PROCESSING, LLC,
DEFENDANT.



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM ORDER

AND NOW, this 2nd day of March, 2012, upon consideration of Plaintiff's Renewed Motion for Service by Publication and Posting (Doc. No. 6), it is hereby ORDERED that said Motion (Doc. No. 6) is GRANTED as follows. Service upon Defendant Pan Metal & Processing, LLC ("Defendant" or "Pan Metal") shall be made by:

1. Publishing notice once in The Legal Intelligencer, The Philadelphia Inquirer, and The Burlington County Times in the format required by Pennsylvania Rule of Civil Procedure 430(b)(1);

2. Posting notice and copies of the summons and complaint at the last known address of Pan Metal and the last known address of Pan Metal's sole organizer, Jeffrey Wilkins; and

3. Mailing copies of the summons and complaint to the last known addresses of Pan Metal and Jeffrey Wilkins.

Plaintiff shall effectuate service in this manner on or before March 23, 2012. In addition, Plaintiff must post proof of service on ECF no later than March 30, 2012. Adequate proof of service may comprise an affidavit along with supporting documentation reflecting that Plaintiff served process in accordance with this Order.

I. Factual Background and Procedural History

On November 3, 2011, Plaintiff Olympic Steel, Inc. ("Olympic Steel" or "Plaintiff") brought this action against Defendant Pan Metal alleging breach of contract, promissory estoppel, unjust enrichment, and conversion. (Doc. No. 1). The complaint avers that Pan Metal has not paid $411,326.91 it owes to Olympic Steel, a supplier of steel products, for product delivered between March of 2010 and July of 2011 (Doc. No. 1 ¶¶ 5-7). On December 12, 2011, after several unsuccessful attempts to serve process on Pan Metal, Plaintiff asked us to authorize service by publication. (See Doc. No. 3). We denied that request without prejudice on December 21, 2011, reasoning that Plaintiff had not yet done enough to justify this option of last resort. (See Doc. No. 4).

Two (2) months later, on February 21, 2012, we ordered Plaintiff to effectuate service by March 5, 2012, or risk dismissal under Federal Rule of Civil Procedure 4(m). (See Doc. No. 5). Plaintiff has now renewed its motion for alternative service of process, detailing its many unsuccessful endeavors to serve Pan Metal and its sole organizer, Jeffrey Wilkins. (See Doc. No. 6). As explained herein, Plaintiff has now met the criteria for alternative service of process under Rule 430(a) of the Pennsylvania Rules of Civil Procedure, and we grant Plaintiff's motion accordingly.

II. Legal Analysis

As we did in our prior Order, we begin with a brief overview of the rules governing service of process in general. Under Federal Rule of Civil Procedure 4(h), one may serve a corporation, partnership, or association "in the manner prescribed by Rule 4(e)(1) for serving an individual." Fed. R. Civ. P. 4(h)(1)(A). Accordingly, a plaintiff may serve process "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." Fed. R. Civ. P. 4(e)(1). We sit in Pennsylvania, so Olympic Steel may effect service of process in this matter according to Pennsylvania law.

Rule 430(a) of the Pennsylvania Rules of Civil Procedure provides that "[i]f 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." Here, Plaintiff moves under this Rule for an order permitting service by publication and posting.

While Rule 430 contemplates service by publication in some circumstances, see Pa. R. Civ. P. 430(b)(1), a court may authorize such an alternative method of service only as a last resort. Grove v. Guilfoyle, 222 F.R.D. 255, 256 (E.D. Pa. 2004) (citation omitted); see also Fusco v. Hill Fin. Sav. Ass'n, 683 A.2d 677, 680 (Pa. Super. Ct. 1996) (remarking that "[s]ervice of process by publication is an extraordinary measure and great pains should be taken to ensure that the defendant will receive actual notice of the action against him."). We must remember that "[s]ervice of process is not a mere technicality. Rather, constitutional due process requires that service of process be 'reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Calabro v. Leiner, 464 F. Supp. 2d 470, 471 (E.D. Pa. 2006) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).

With that in mind, "[t]here are three steps a party wishing to obtain leave for alternate service of process must take under the Pa. R. Civ. P. 430. First, the person must show a good faith effort to locate the person on which service is to be made. Second, plaintiff must undertake practical efforts to serve defendant under the circumstances. If the plaintiff has satisfied these first two steps, she must then show that the proposed alternate method of service is reasonably calculated to provide the defendant with notice of the proceedings against him." Id. at 470-71; see also Barbosa v. Dana Capital Grp., Civil Action No. 07-cv-1724, 2009 WL 902339, at *4 (E.D. Pa. Mar. 31, 2009) (noting that "[d]istrict courts in the Third Circuit have repeatedly held that ...


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