United States District Court, M.D. Pennsylvania
EDGAR A. BEDOYA and NORMA BEDOYA, H/W, Plaintiffs
ENES TUHCIC, ARIZONA TRANSPORTATION, LLC, and D&D EXPRESS, INC., Defendants
William W. Caldwell United States District Judge
BACKGROUND OF THIS ORDER IS AS FOLLOWS:
January 5, 2017, Edgar A. Bedoya and Norma Bedoya
(“Plaintiffs”) filed a “Motion for Service
by Publication and Service Upon Defendants'
Insurer.” (Doc. 5). In their motion, Plaintiffs aver
that they attempted to serve Enes Tuhcic, Arizona
Transportation, LLC, and D&D Express, Inc.
(“Defendants”) with process in prosecution of
their complaint (Doc. 1). (Doc. 5 at 3). Plaintiffs, in the
affidavit incorporated into their motion, assert that
“[f]our attempts at personal service were made on
Defendant Enes Tuhcic by a process server to no avail.”
(Doc. 5-1 at 2). Plaintiffs also attempted to serve Arizona
Transportation, LLC and D&D Express, Inc. by sending each
a copy of the complaint via first class mail and certified
mail, return receipt requested. (Id.) The certified
mail package addressed to Arizona Transportation, LLC was
returned as “Return to Sender - Unclaimed.”
(Id.) Also, Plaintiffs have not received the signed
return receipt card for the certified mail sent to D&D
Express, Inc.; however, tracking information from the U.S.
Postal Service indicates that notice was left on May 2, 2016.
(Doc. 5-1 at 2). Plaintiffs now move to serve Defendants by
publishing a notice of their complaint in a local newspaper:
The Arizona Business Gazette. (Doc 5 at 7-8).
Plaintiffs have provided a courtesy copy of the complaint to
National Indemnity Company, which they aver is
“Defendants' insurance company.”
(Id. at 7). It is unclear from Plaintiffs'
motion specifically which individuals or entities are insured
by National Indemnity Company. Plaintiffs further request
permission to formally serve National Indemnity Company and
to have that service deemed effective on each Defendant
insured by or through the insurer. (Id.) For the
following reasons, the court will deny Plaintiffs'
Service by Alternative Means
service is indispensable to a federal district court's
personal jurisdiction over a defendant. Grand Entm't
Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 484 (3d
Cir. 1993). Pursuant to Federal Rule of Civil Procedure
4(e)(1), service of process may be effected according to the
law of the state in which the district court sits or where
service is made. Plaintiffs assert Defendants are located in
Arizona and seek to serve Defendants there. (Doc. 5 at 3).
Plaintiffs have only invoked the Arizona Rules of Civil
Procedure, and, accordingly, the court will only consider
Plaintiff's motion under those Rules. (Id. at
Rule of Civil Procedure 4.1(k) provides for alternative means
of service. Specifically, the Rule states: “If a party
shows that the means of service provided in Rule 4.1(c)
through Rule 4.1(j) are impracticable, the court may-on
motion and without notice to the person to be served-order
that service may be accomplished in another manner.”
Ariz. R. Civ. P. 4.1(k)(1). Service by publication is an
alternative means of service. Id. 4.1(k)(3).
Plaintiffs seek to serve an individual, a corporation, and an
unincorporated association. In order to reach alternative
service by publication, Plaintiffs must first show that the
means of service provided by, in relevant part, Rules 4.1(c),
(d), and (i), are impracticable. Id. 4.1(k)(1).
4.1(c) covers requests for waiving service of process.
Pursuant to this Rule, Plaintiffs are permitted to request
that Defendants waive service of a summons. Id.
4.1(c). However, it does not appear that Plaintiffs have
requested waiver of service from Defendants.
Rule 4.1(i), entitled “Serving a Corporation,
Partnership, or Other Unincorporated Association, ”
If a domestic or foreign corporation, partnership, or other
unincorporated association has the legal capacity to be sued
and has not waived service under Rule 4.1(c), it may be
served by delivering a copy of the summons and the pleading
being served to a partner, an officer, a managing or general
agent, or any other agent authorized by appointment or by law
to receive service of process and--if the agent is one
authorized by statute and the statute so requires--by also
mailing a copy of each to the defendant.
Id. 4.1(i). Service on Defendants D&D Express,
Inc. and Arizona Transportation, LLC may be accomplished
pursuant to Rule 4.1(i). Id. According to Rule
4.1(i), only enumerated individuals associated with the
corporation or association are capable of receiving service.
Id. Delivering copies of the summons and pleadings
to an unauthorized individual does not constitute effective
service. See, e.g., In re S&S Sales,
Ltd., 2009 Bankr. LEXIS 4444, at *20-21 (Bankr. D. Ariz.
2009) (holding plaintiff improperly served defendant when
copy of summons and pleadings left with individual working at
defendant's Scottsdale, Arizona office because that
individual did not have authority to accept service).
assert that they attempted to serve Defendants D&D
Express, Inc. and Arizona Transportation, LLC by sending them
a copy of the summons and complaint via first class and
certified mail. Rule 4.1(i) makes clear that mailing a copy
of the summons and pleading is insufficient to accomplish
service of process on a corporation or association; service
is successfully accomplished in this context only when a copy
of the summons and pleading is delivered to ...