United States District Court, W.D. Pennsylvania
Maureen P. Kelly Chief Magistrate Judge
Developers Surety and Indemnity Company
("Developers") filed the instant action alleging
contract and common law claims for indemnification,
reimbursement, and exoneration against Defendants Parkwood
Pointe Associates, LLC, Blackwood Point Associates, LLC, and
David G. Cherup ("Cherup"). ECF No. 1. Now pending
before the Court is Developers' Renewed Motion for
Alternative Service, ECF No. 8. For the following reasons,
the Motion will be granted.
December 19, 2017, Developers initiated this action by filing
a Complaint. ECF No. 1. To date, and despite well over a
dozen attempts, Developers has been unable to serve the
Complaint on Cherup, or on the named corporate Defendants,
each of which are controlled by Cherup. Through the pending
Motion and exhibits filed in support thereof. Developers
details a story of evasion and apparent intentional efforts
to prevent service upon Cherup, warranting the requested
before commencing this action, Developers retained LawServe,
a process server, to locate and serve Defendants with a
Demand Letter requesting performance under the indemnity
agreements at issue. Prior to employing LawServe, Developers
sent their Demand Letter to Defendants' last known
address. Developers states that these attempts were
unsuccessful and the Demand Letter was returned undeliverable
or refused after each attempt. ECF No. 8 ¶¶9-10.
retention, LawServe unsuccessfully attempted personal service
of the Demand Letter at least seven times at multiple
addresses, including Cherup's last known residential
address. ECF No. 8-1. In April 2018, LawServe confirmed
Cherup's addresses through a "skip trace"
report revealing a newly issued Florida driver's license
with a Florida residential address. Thereafter, multiple
unsuccessful attempts were made to serve Cherup in Florida.
Cherup's stepson and girlfriend, both residing at the
Florida address, indicated that Cherup was traveling to his
last known residential address Pennsylvania, where service
previously had been attempted. LawServe agents subsequently
made at least additional attempts to serve Plaintiff at the
Pennsylvania address provided by Cherup's stepson and
girlfriend, to no avail.
Developers filed its initial Motion for Alternative Service,
ECF No. 6, which this Court denied without prejudice by Order
dated April 30, 2018, to permit the development of a more
complete record of attempts to serve Cherup at various times
of the day, outside of business hours. ECF No. 6.
LawServe, renewed efforts to serve Cherup and the corporate
Defendants were made beginning May 1, 2018. Thoughout the
next six weeks, it is apparent that service was attempted at
different times of the day, both in the morning and in the
evening, and cards requesting contact were left at the door.
At one point, Cherup's sister contacted a LawServe
employee and reported that Cherup did not reside at the
Pennsylvania location, but could be located in Florida. This
conflicted with information obtained from Cherup's
girlfriend, and from neighbors residing near the Pennsylvania
address, who reported that Cherup had been seen on an
intermittent basis. ECF No. 8 at 5.
LawServe employees have made eighteen attempts to serve
Defendants at three separate addresses in two different
states, and have spoken with multiple individuals associated
with the addresses to confirm Cherup's location. It is
clear that Developers has made a good faith effort to serve
Defendants, and that further efforts at service will be
futile. Through the pending Motion, Developers requests that
the Court enter an order approving substituted service upon
Defendants by way of U.S. First Class Mail at the Florida and
Pennsylvania addresses previously confirmed by Cherup's
girlfriend and the skip-trace report. Developers believes
service by mail is reasonably calculated to provide
Defendants with notice of these proceedings.
of the Federal Rules of Civil Procedure governs the process
for service on a defendant with a summons and complaint.
Because Defendants include an individual and two corporate
entities, service is governed by Rules 4(e) and 4(h), which
in turn permit service of process and a complaint to be made
in compliance with applicable state law. In this instance,
Pennsylvania law applies and, pursuant to Rule 430 of the
Pennsylvania Rules of Civil Procedure, substitute or
alternative service is permitted where service "cannot
be made under the applicable rule." Pa. R.C.P. 430(a).
prevail on a motion for alternate service under Rule 430, a
plaintiff must establish "(1) an unsuccessful attempt to
properly serve the defendant; (2) a good faith effort to
locate the defendant; and (3) a method of alternative service
that is reasonably calculated to give actual notice to the
defendant." MUNB Loan Holdings. LLC v. Shoval
N. 12-CIV-20305, 2012 WL 12865246, at *2 (S.D. Fla. June 20,
2012)(applying Pennsylvania law and quoting AYR Motor
Express. Inc. v. Keystone Transp. Servs., 1998 WL 94811,
at *2 (E.D. Pa. March 4, 1998)); and see, Kittanning Coal
Co. v. Int'l Min. Co.. 551 F.Supp. 834, 842 (W.D.
Pa. 1982)(same as to superseded version of Rule 430).
instant case. Developers has presented sufficient evidence
that it has made a thorough and good faith effort to lawfully
effectuate service and that Cherup and, through him, the
Corporate Defendants, are actively evading service.
Accordingly, the Court will allow for substitute service by
certified and regular mail, which are calculated to provide
notice to Defendants of this proceeding, and therefore
comport with due process. See Teamsters Pension Tr. Fund
of Philadelphia & Vicinity v. Direct Carrier Transp.
& Distribution, Inc.. 2002 WL 32349874, at *1 (E.D.
Pa. Feb. 15, 2002); Elec. Boutique Holdings Corp. v.
Zuccarini, 2001 WL 83388, at * 7 (E.D. Pa. Jan. 25,
2001) (recognizing that service by certified and regular mail
was proper ...