United States District Court, E.D. Pennsylvania
B. BRODY, J.
United States of America brings this student loan collection
action against Defendant Anita C. Ciccione. 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 and the proposed alternative
service is not reasonably calculated to provide Defendant
with notice, 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.
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, the plaintiff will
be unable to demonstrate that s/he has made a good faith
effort to personally serve the defendant. Linares,
2016 WL 7014192, at *2; Barbosa, 2009 WL 902339, at
Plaintiff's efforts to locate Defendant are insufficient
to justify alternative service. Plaintiff's attempts to
locate Defendant are listed on an “Affidavit of Good
Faith Investigation” that outlines an investigation
into Defendant's whereabouts. The truncated affidavit
lists, albeit with minimal explanation, that the following
investigation occurred: 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.
Additionally, Plaintiff made no inquiry of voter registration
records, tax records, or the ownership or rental status of
Defendant's last known address-additional sources of
information that could have helped to determine
Defendant's whereabouts. See Linares, 2016 WL
7014192, at *2
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, the process server made only one attempt to serve
Defendant on New Year's Day observed, January 2, 2017.
Pl.'s Mot., Ex. A, ECF No. 2-3. The attempt failed and
the process server noted that the property was empty inside
and vacant. Id. The fact that the property was
vacant should not have been an indication to Plaintiff that
no further service attempts were necessary. Rather, Plaintiff
should have realized that further efforts to locate Defendant
were necessary because Defendant did not reside at her last
known address. This single attempt to serve Defendant on New
Year's Day observed-a federal holiday-is insufficient to
establish that Plaintiff made practical efforts to serve
Defendant. See Viking Ins. Co. of Wisconsin v.
Rivas, No. 12-6899, 2013 WL 1842229, at *3 (E.D. Pa. May
1, 2013) (“[B]ecause plaintiff has only attempted
service . . . one time, plaintiff has clearly not satisfied
the ‘practical efforts to serve'
requirement.”); Banegas, 2009 WL 1140268, at
*2 (“To claim that the single service attempt under
these circumstances satisfies the practical efforts standard
requires a substantial reinterpretation of the standard
Service Reasonably Calculated to Provide ...