United States District Court, E.D. Pennsylvania
B. BRODY, J.
United States of America brings this student loan collection
action against Defendant Anthony E. Smith. Plaintiff moves
for allowance to serve Defendant by mail and posting the
summons and complaint at Defendant's last known address
because Plaintiff has been unable to personally serve
Defendant. Because Plaintiff's efforts to locate and
serve Defendant are insufficient, I will deny Plaintiff's
Motion for Service by Posting Property and Certified Mail.
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.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950)). Under Federal Rule of Civil Procedure 4(e)(1),
service may be executed pursuant to the law of the state
where the district court is located or where service is made.
Because this Court is located in Pennsylvania, Plaintiff
seeks to provide alternative service to Defendant pursuant to
Pennsylvania law. Pennsylvania Rule of Civil Procedure 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 whereabouts of the
defendant and the reasons why service cannot be made.
Pa. R. Civ. P. 430(a).
service is only appropriate as a ‘last resort' when
personal service cannot be made.” United States v.
Linares, No. 16-4463, 2016 WL 7014192, at *1 (E.D. Pa.
Nov. 30, 2016) (quoting Johnson v. Berke Young Int'l
L.L.C., No. 07-2240, 2007 WL 3010531, at *1 (E.D. Pa.
Oct. 12, 2007)); Barbosa v. Dana Capital Grp., Inc.,
No. 07-1724, 2009 WL 902339, at *4 (E.D. Pa. Mar. 31, 2009);
Grove v. Guilfoyle, 222 F.R.D. 255, 256 (E.D. Pa.
2004). In order to obtain permission for alternative service,
a plaintiff must show that: “(1) it made a good faith
effort to locate the defendant; (2) it made practical efforts
to serve her under the circumstances; and (3) its proposed
alternate means of service is ‘reasonably calculated to
provide the defendant with notice.'”
Linares, 2016 WL 7014192, at *1 (quoting
Premium Payment Plan v. Shannon Cab Co.,
No. 04-4669, 2007 WL 2319776, at *2 (E.D. Pa. Aug. 13, 2007);
Calabro, 464 F.Supp.2d at 472. If a plaintiff has
not made a sufficient effort to locate and serve a defendant,
then alternative service is not appropriate and there is no
reason to consider the third factor. Linares, 2016
WL 7014192, at *1.
Faith Effort to Locate Defendant
403(a) provides the following list of examples of good faith
efforts: “(1) inquiries of postal authorities including
inquiries pursuant to the Freedom of Information Act, 39
C.F.R. Part 265, (2) inquiries of relatives, neighbors,
friends, and employers of the defendant, (3) examinations of
local telephone directories, courthouse records, voter
registration records, local tax records, and motor vehicle
records, and (4) a reasonable internet search.” Pa. R.
Civ. P. 430(a) note. A good faith effort to locate a
defendant may also include hiring private investigators or
skip tracer services. Linares, 2016 WL 7014192, at
*2; Barbosa, 2009 WL 902339, at *5. “[I]t is
clear that ‘more than a mere paper search is
required' before service by publication will be
permitted.” Barbosa, 2009 WL 902339, at *5
(quoting Deer Park Lumber, Inc. v. Major, 559 A.2d
941, 946 (Pa. Super. Ct. 1989)). Unless a plaintiff uses most
of these methods to locate the defendant, he will be unable
to demonstrate that he has made a good faith effort to
personally serve the defendant. Linares, 2009 WL
902339, at *2; Barbosa, 2009 WL 902339, at *5.
Plaintiff's efforts to locate Defendant are insufficient
to justify alternative service. Plaintiff's attempts to
locate Defendant are listed on a one page “Affidavit of
Good Faith Investigation” that outlines an
investigation into Defendant's whereabouts that included
a death record search, an undefined employment search, a
creditor header inquiry, an undefined professional licenses
search, a postal Freedom of Information Act inquiry, a
military search, calls to an unnamed possible relative and an
unnamed possible neighbor, and to a possible number belonging
to Defendant, a correctional search, and a search of three
social media sites. Pl.'s Mot. Ex. B, ECF No. 2-3. Very
few of these searches produced any information about
Defendant. Moreover, Plaintiff provides no additional
evidence, such as Defendant's credit report, to bolster
the adequacy of the investigation. While the affidavit
reflects that the investigator made calls to a possible
relative and a possible neighbor, these individuals are not
identified by name, there is no evidence to support their
possible connection to Defendant, and the investigator never
reached anyone during these calls nor left any messages.
Although Plaintiff learned from the Philadelphia County
Assessment that James and Sarah Shearin are the property
owners of Defendant's last known address, there is no
evidence that Plaintiff attempted to reach out to the
Shearins to verify if Defendant resided at the property.
Pl.'s Mot. Ex. A, ECF No. 2-3. Additionally, Plaintiff
made no inquiry of voter registration records or tax records
to confirm Defendant's address.
other courts in this district have encountered almost
identical “Affidavits of Good Faith
Investigation.” In each case, these affidavits have
been produced by the same legal services support firm and
submitted to the court by the same law firm. Several of these
courts have concluded that these affidavits are insufficient
to establish Plaintiff's good faith effort to locate the
defendant. See, Order, United States v. Mark K.
Ishmael, No. 16-5376, at *2-3 (E.D. Pa. Jan. 5, 2017),
ECF No. 3; Linares, 2016 WL 7014192 at *2;
United States v. Chhay, No. 15-2078, 2015 WL
5460640, at *2 (E.D. Pa. Sept. 17, 2015). But see Unites
States v. Lori Cassel, No. 12-784, 2013 WL 2495145, at
*2 (E.D. Pa. June 11, 2013). Because of the above outlined
deficiencies in the investigation, Plaintiff has not
demonstrated a good faith effort to locate Defendant.
Efforts to Serve Defendant
plaintiff must also demonstrate that he has made practical
efforts to serve the defendant. “Generally, a plaintiff
must make multiple attempts to serve a defendant in order to
demonstrate that alternative service is necessary.”
Linares, 2016 WL 7014192, at *2 (E.D. Pa. Nov. 30,
2016). “Half-hearted attempts at service will not
do.” Calabro, 464 F.Supp.2d at 473. In
circumstances where a plaintiff has made only three attempts
at service, courts have often been unwilling to find that the
plaintiff has made practical efforts to serve the defendant.
See Linares, 2016 WL 7014192, at *3 (holding that
the plaintiff did not make practical efforts to serve the
defendant after three attempts at service); Chhay,
2015 WL 5460640, at *2-3 (same); Calabro, 464
F.Supp.2d at 473 (same). “[A]s many as six repeated
attempts at service and a stakeout may be necessary to
demonstrate that all practical efforts were made to serve the
defendant.” Linares, 2016 WL 7014192, at *2
(E.D. Pa. Nov. 30, 2016); Olympic Steel, Inc. v. Pan
Metal & Processing, LLC, No. 11-6938, 2012 WL
682381, at *3 (E.D. Pa. Mar. 2, 2012); Banegas v.
Hampton, No. 08-5348, 2009 WL 1140268, at *2 (E.D. Pa.
Apr. 27, 2009).
case, a process server made three attempts to serve Defendant
at his last known address on the following dates: Friday,
December 23, 2016 at 9:00 p.m.; Tuesday, December 27, 2016 at
8:44 a.m.; and Wednesday, December 28, 2016 at 4:02 p.m.
Pl.'s Mot., Ex. A, ECF No. 2-3. On each occasion, there
was no answer at the property. Id. All three
attempts to serve Defendant occurred in a single six-day
period that included such major holidays as Christmas,
Hanukkah, and Kwanzaa. Given the time of year that Plaintiff
attempted to serve Defendant, it is not surprising that no
one answered at the property. There is no evidence that
Defendant evaded service or that future attempts at service
would be futile. See Calabro, 464 F.Supp.2d at 473
(holding that the plaintiff failed to make practical efforts
to serve the defendant after three attempts at service absent
evidence that the defendant was evading service or that
future attempts at service would be futile). Based on these
circumstances, Plaintiff has not made practical efforts to
deny Plaintiff's motion for alternative service because
Plaintiff has not made a sufficient effort ...