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Black v. Dublin EMS, LLC

United States District Court, M.D. Pennsylvania

March 28, 2017

ZEINA BLACK, Plaintiff
v.
DUBLIN EMS, LLC and JASON COE, Defendants

          MEMORANDUM

          William W. Caldwell United States District Judge.

         I. Introduction

         Before this court is Plaintiff Zeina Black's “Renewed Motion for Alternative Service by Publication.” (Doc. 13). For the reasons that follow, we will deny Plaintiff's motion, but grant a forty-five day extension of time to attempt service by sheriff as required by Pennsylvania Rule of Civil Procedure 400(a).

         II. Background

         On June 30, 2016, Plaintiff initiated this action by filing a complaint against Defendants Jason Coe and Dublin EMS, LLC (Dublin EMS) alleging claims of retaliation, employment discrimination, and hostile work environment pursuant to Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act. (Doc. 1 at 5, 8). According to the complaint, Coe was the owner of Dublin EMS and was Plaintiff's supervisor during her employment as an Emergency Medical Technician. (Id. at 1-2).

         On September 26, 2016, Plaintiff filed a letter with this court indicating that she was experiencing difficulties serving Defendants and requesting a thirty-day extension of time to explore alternative means of service. (Doc. 4). The following day, this court granted Plaintiff an additional forty-five days to serve Defendants. (Doc. 5). On November 11, 2016, Plaintiff filed a second letter informing this court of her continued difficulties and again requesting an additional forty-five days to serve Defendants. (Doc. 6). This court granted Plaintiff a second extension of time to achieve service. (Doc. 7). However, Plaintiff was again unsuccessful in serving Defendants, and, on December 29, 2016, she filed a “Motion for Alternative Service by Publication.” (Doc. 8).

         On January 19, 2017, this court denied the motion and explained that Plaintiff did not demonstrate sufficient practical efforts to serve Defendants pursuant to the Pennsylvania Rules of Civil Procedure. (Doc. 12 at 3). In that order, we explained that “[a]lternative service is only permissible when service ‘cannot be made' under the applicable rule of civil procedure, ” and we concluded that, although it appeared that Plaintiff located Defendants and attempted service via mail, it did not appear that she had “attempted to serve Defendants in person.” (Id. at 2-3). We then granted Plaintiff an additional forty-five days to serve Defendants. (Id.)

         Following our order, Plaintiff again attempted to serve Defendants without success. (Doc. 13 at 3). On March 6, 2017, she filed the instant renewed motion for alternative service by publication. (Doc. 13). In her motion, Plaintiff details her previous and continued efforts to serve Defendants over the last nine months, and supports her claims with sixty-four pages of exhibits. (Id.) Those exhibits establish the following.

         On July 11, 2016, Plaintiff attempted to serve Defendants via certified, first-class mail at a P.O. Box in Jonestown, Pennsylvania, but the mailings were returned to sender marked “not deliverable as addressed - unable to forward.” (Doc. 14-1 at 6-7). On July 28, 2016, Plaintiff then contacted an attorney known to have represented Defendants. (Id. at 9-10). The attorney stated that he received service packets for Defendants, but advised that he “no longer represent[s] Mr. Coe or his defunct company, ” and that he was not authorized to accept service on behalf of Defendants and did not know where they could be located. (Id.)

         On August 3, 2016, Plaintiff contacted the United States Postal Service to determine if Defendants had a forwarding address. (Doc. 14-1 at 12-13). The Postal Service informed Plaintiff that Defendants had “moved, [and] left no forwarding address.” (Id.) Also on that day, Plaintiff conducted property records searches for Berks, Lancaster, Dauphin, and Lebanon counties, which did not turn up any property owned by Defendant Coe. (Id. at 15-18). Plaintiff also searched public records for Defendant Coe using Pennsylvania's Unified Judicial System's web docket search function, which did not reveal any civil, criminal, or landlord/tenant litigation for Coe. (Id. at 19-21).

         Plaintiff proceeded to hire a private investigator to assist in attempting to serve Defendants. (Docs.14-1 at 23-27; 14-6 at 1). On November 7, 2016, the investigator researched Defendants, yielding an alleged address for Coe at Dogwood Lane in Jonestown, Pennsylvania. (Doc. 14-1 at 23-27). Plaintiff also conducted an online white pages query, which revealed the same address. (Doc. 13 at 2-3). On November 11, 2016, Plaintiff sent the complaint and summons to Defendants via certified, first-class mail at the Dogwood Lane address. (Doc. 14-1 at 28-31). The Postal Service attempted to deliver the mail multiple times and left notices for Defendants on several occasions: December 1, 2017; December 8, 2017; and December 9, 2017. (Id.) Later that month, the mail was returned to Plaintiff as “unclaimed” and “unable to forward.” (Id.) During that same period, from November through December of 2016, Plaintiff's private investigator also conducted surveillance at the address. (Doc. 14-6 at 1-2). The investigator took photographs of a Chevy Tahoe near the home bearing a Pennsylvania emergency vehicle (EV) license plate; Defendant Coe in this action is alleged to have operated an Emergency Medical Services company, Dublin EMS. (Doc. 14-1 at 33); (Doc. 1 at 1-2). Plaintiff's investigator also took photographs of the mailbox at the address, which appears to bear Defendant Coe's name, as it is marked “J. Coe.” (Doc. 14-1 at 34).

         In conjunction with attempting to mail service, Plaintiff's investigator attempted in-person service at the Dogwood Lane address. (Doc. 14-6 at 1-3). Plaintiff's investigator avers that he attempted service on five occasions over the course of four months, each on separate days of the week and at different times of day. (Id.) Plaintiff's investigator avers that he surveilled the address on five days for one-hour blocks of time: Monday, November 7, 2016, from 7:30 p.m. to 8:30 p.m.; Wednesday, November 9, 2016, from 1:00 p.m. to 2:00 p.m.; Friday, January 20, 2017, from 8:10 p.m. to 9:10 p.m.; Saturday, February 18, 2017, from 10:40 a.m. to 11:40 a.m.; and Sunday, February 19, 2017, from 7:51 p.m. to 8:51 p.m. (Doc. 14-6 at 1-2). On each occasion, there was no answer when the investigator knocked on the front and back doors of the dwelling, and there was no indication that Defendants were on the premises. (Id.) Due to these unsuccessful attempts at service, Plaintiff again moves to serve Defendants pursuant to Federal Rule of Civil Procedure 4(e)(1) and Pennsylvania Rule of Civil Procedure 430(a) by publishing a notice in two local newspapers: the Lebanon Daily News and the Patriot News. (Docs. 13 at 4, 14 at 2-3).

         III. Discussion

         There is no specific Federal Rule of Civil Procedure that provides for alternative service by publication. See United States v. Linares, No. 16-4463, 2016 WL 7014192, at *1 (E.D. Pa. Nov. 30, 2016); Shuster v. Conley, 107 F.R.D. 755, 757 (W.D. Pa. 1985). However, pursuant to Federal Rule of Civil Procedure 4(e)(1), an individual within a judicial district of the United States may be served by “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). Likewise, pursuant to Federal Rule of Civil Procedure 4(h)(1)(A), an unincorporated association may be served “in the manner prescribed by Rule 4(e)(1) for serving an individual.” Fed.R.Civ.P. 4(h)(1)(A). Thus, pursuant to Federal Rules 4(e)(1) and 4(h)(1)(A), because Plaintiff ...


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