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Fmm Bushnell, LLC v. Gilbert Commons, Inc.

United States District Court, M.D. Pennsylvania

February 20, 2015

FMM BUSHNELL, LLC, Plaintiff,
v.
GILBERT COMMONS, INC., Defendant

MEMORANDUM

WILLIAM J. NEALON, District Judge.

Plaintiff, FMM Bushnell, LLC, filed the above-captioned foreclosure action against Defendant, Gilbert Commons, Inc., alleging Defendant's default under the terms of a commercial mortgage. (Doc. 1, p. 1). Before this Court is Plaintiff's motion for alternate service of process pursuant to Pennsylvania Rule of Civil Procedure 430(a). (Doc. 7). For the reasons set forth below, Plaintiff's motion will be denied without prejudice.

I. BACKGROUND

On September 3, 2014, Plaintiff, FMM Bushnell, LLC, brought this foreclosure action against Defendant, Gilbert Commons, Inc., alleging Defendant's default under the terms of a commercial mortgage. (Doc. 1, p. 1). On September 4, 2014, Plaintiff's counsel wrote to David A. Martino, Esq., Defendant's counsel in a related proceeding, enclosing copies of a waiver of service or summons, the summons, and the complaint. (Doc. 7, p. 2, Ex. A). On September 10, 2014, Attorney Martino informed Plaintiff's counsel that he would not be representing Defendant in the above-captioned matter and was not authorized to accept service. (Doc. 7, p. 3, Ex. B).

Plaintiff contacted the United States Marshal Service in Scranton, Pennsylvania to effectuate service of the summons and complaint. (Id.). Plaintiff was advised to retain a private process server. (Id.).

On September 16, 2014, Plaintiff's counsel retained Seagull Legal Services, Inc. ("Seagull Legal Services") to effectuate service of the summons and complaint upon Defendant at its corporate address. ( Id., Ex. C). Defendant's registered address with the Commonwealth of Pennsylvania's Department of State, Corporation Bureau is 840 Stony Mountain Road, Albrightsville, Pennsylvania 18210. ( Id., p. 5, Ex. 1 at pp. 3-4).[1] On October 6, 2014, Tom Walsh, a process server for Seagull Legal Services, issued a proof of service indicating that service was attempted on Defendant, but was returned because "[c]urrent resident does not know defendant." ( Id., p. 3, Ex. C).

Beginning on September 28, 2014, Plaintiff's counsel, in connection with a related lawsuit in state court, attempted to serve Defendant's President, Michael Petrin ("Petrin"), at his last known physical address. (Doc. 7, Ex. E) (Carbon County Sheriff's Return of Service identified "CASE ID" as 14-2026). Plaintiff conducted a United States Postmaster's Search and an "Internet Search" to determine the whereabouts of Petrin. ( Id., pp. 4, Ex. 1 at p. 3). Those sources indicate Petrin's current physical address is 1640 State Route 534, Albrightsville, Pennsylvania 18210. (Id.). Plaintiff employed the services of the Carbon County Sheriff's Office to effectuate service in its related matter before state court. (Id.). From September 28, 2014, to October 7, 2014, the Carbon County Sheriff's Office made ten (10) unsuccessful attempts to serve Petrin at his Albrightsville address. ( Id., Ex. E).

Plaintiff's counsel, after further investigation, uncovered an alternate address for Petrin at 1521 Youngs Point Place, Herndon, Virginia 20170. ( Id., p. 4). Plaintiff then retained Process Server VA, LLC ("Process Server VA"), a private process server, to serve Petrin at that address. ( Id., Ex. F). It is unclear from Plaintiff's submissions whether Process Server VA attempted to serve Defendant with the summons and complaint in this matter, or a related state court matter. ( Id., Ex. F). Specifically, Plaintiff has attached an affidavit of non-service signed by Courtney C. Inglefield, a process server for Process Server VA, to its motion. (Doc. 7, Ex. F). In addition to stating that from October 20, 2014, to October 24, 2014, five (5) unsuccessful attempts to serve Petrin were made at his Virginia address, Inglefield's affidavit also identifies the case number as "14-20220." (Id.). Moreover, the top of Inglefield's affidavit references the "County of Carbon" and the "Common Pleas Court." (Id.).

Plaintiff also conducted a search of the records in the Carbon County Tax Assessor's Office in an attempt locate the Defendant. ( Id., Ex. 1 at pp. 3-4). The Carbon County Tax Assessor confirmed that the property at 840 Stony Mountain Road, Defendant's registered corporate address, is owned by Petrin. ( Id., p. 4).

On December 31, 2014, Plaintiff filed a motion for an extension of time to effectuate service of summons and complaint. (Doc. 4). On January 13, 2015, this Court granted Plaintiff sixty (60) days from the date of the order to effectuate service of summons and complaint. (Doc. 6).

On February 11, 2015, Plaintiff filed the instant motion for special service, (Doc. 7), and its brief in support, (Doc. 8). Plaintiff asserts that Defendant's actions have prejudiced it in its ability to pursue this action. (Doc. 7, p. 6). Plaintiff seeks a special order pursuant to Pennsylvania Rule of Civil Procedure 430 authorizing service by posting the registered office address of the corporation as well as via certified mail, return receipt requested, and via first class mail, prepaid postage, to Petrin at his current mailing address. (Doc. 7, p. 6). For the reasons set forth below, Plaintiff's motion will be denied without prejudice.

II. DISCUSSION

Plaintiff requests this Court grant permission to serve special process under Federal Rule of Civil Procedure 4(h)(1)(A). Rule 4(h)(1)(A) allows for a corporation to be served in a judicial district of the United States in the manner prescribed by Rule 4(e)(1) for serving an individual, unless federal law provides otherwise or defendant has filed a waiver. FED. R. CIV. P. 4(h)(1)(A). "Federal Rule of Civil Procedure 4(e)(1) provides the option of serving the summons and complaint in a federal civil action pursuant to the law of the state in which the district court is located.'" HSBC Bank United States, N.A. v. Williams, 2007 U.S. Dist. LEXIS 97423, *5 (M.D. Pa. 2007) (Vanaskie, J.). Moving for special service under Pennsylvania law, Plaintiff invokes Pennsylvania Rule of Civil Procedure 430(a). (Doc. 7, p. 4). Pursuant to Rule 430(a):

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 ...

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