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Chubb National Insurance Co. v. D'Alessio

United States District Court, E.D. Pennsylvania

June 24, 2019

CHUBB NATIONAL INSURANCE COMPANY
v.
ANDREA D'ALESSIO, et al.

          MEMORANDUM

          John R. Padova, J.

         Plaintiff Chubb National Insurance Company has moved for an extension of time to serve Defendants Andrea D'Alessio (“D'Alessio”), Andre D'Alessio Construction, Inc. (“D'Alessio Construction”), and D'Alessio Stone Corporation (“Stone Corp.”) by publication. For the following reasons, we grant Plaintiff's Motion to the extent that it seeks an extension of time to effectuate service but deny the Motion without prejudice to the extent that it seeks to serve Defendants by publication alone.

         I. BACKGROUND

         Plaintiff commenced this negligence and breach of contract action against D'Alessio, D'Alessio Construction, and Stone Corp. on January 10, 2019. D'Alessio is the President of both D'Alessio Construction and Stone Corp.

         Plaintiff initially retained a process-serving company to locate and effectuate service on Defendants in Pennsylvania. Shortly after the Complaint was filed, the process server made several attempts to serve Defendants. The process server was able to confirm that D'Alessio no longer resided at his home address in Pennsylvania. (Aff. of Albert Mentz, attached as Ex. B to Pl.'s Mot., ¶ 3.) He was also able to confirm that Defendants no longer maintained a presence at the addresses listed with the Pennsylvania Department of State for Stone Corp. and D'Alessio Construction. (Id. ¶¶ 4-5) The process server then attempted to serve Defendants at D'Alessio's parents' address. (Id. ¶ 6.) D'Alessio's parents informed the process server that D'Alessio was living in New York, but refused to provide his current address. (Id.)

         Plaintiff then retained an investigative firm and located D'Alessio's New York address through a skip-trace search. (Aff. of David Lynam, attached as Ex. A to Pl.'s Mot., ¶¶ 3-4.) A newly-retained process server confirmed D'Alessio's New York address by speaking with neighbors. (Id. ¶ 5.) The new process server also attempted to locate any alternative addresses by engaging in other research techniques, including a three-screen search and a review of the records of the New York Department of Motor Vehicles, but these searches did not provide any definitive results. (Id. ¶ 6.) During an attempt to serve Defendants at the New York address on March 6, 2019, the process server spoke with a man at the property who confirmed that D'Alessio lived at the address and stated that D'Alessio “comes and goes.” (Id. ¶ 8.) On his third attempt to serve Defendants at the New York address, the process server observed a man exiting the front door of D'Alessio's home. (Id. ¶ 10.) He recognized the man as the same man who had confirmed that D'Alessio resided at the New York address. (Id.) When the process server inquired about why the man was exiting D'Alessio's home, the man responded that he was “just in the house to turn off the lights, ” and would not provide any further information or answer any questions. (Id.)

         The next day, on March 16, 2019, the process server received a call from a blocked number, and the caller identified himself as a building inspector. (Id. ¶ 11.) The caller informed the process server that a criminal complaint for trespass had been filed against him and that the process server would be arrested if he returned to D'Alessio's property. (Id.) The process server subsequently spoke with a police officer who informed him that the police department had not received any notice of trespassing at D'Alessio's address and that, in any event, a building inspector did not have the authority to call an accused trespasser. (Id. ¶ 12.)

         Plaintiff now speculates that the man with whom the process server spoke at the New York address was D'Alessio and that D'Alessio was also the unidentified caller claiming to be a building inspector. It therefore argues that D'Alessio is willfully evading service and making it impossible to effectuate personal service. Plaintiff's ninety-day window to serve the Complaint pursuant to Federal Rule of Civil Procedure 4 expired in April of 2019.[1] Plaintiff filed the instant Motion for leave for an extension of time to serve by publication on May 30, 2019. Specifically, Plaintiff requests a sixty-day extension of time to serve Defendants by publishing notice in local newspapers in New Hope, Pennsylvania and Old Westbury, New York once per week for two weeks.

         II. DISCUSSION

         A. Extension of Time for Service

         Pursuant to Federal Rule of Civil Procedure 4(m), a defendant must be served within ninety days after the complaint is filed. Fed.R.Civ.P. 4(m). However, if the Plaintiff shows good cause for failing to serve the defendant within those ninety days, then “the court must extend the time for service for an appropriate period.” Id.; see also Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995) (“First, the district court should determine whether good cause exists for an extension of time. If good cause is present, the district court must extend time for service and the inquiry is ended.”). The United States Court of Appeals for the Third Circuit has “equated ‘good cause' with the concept of ‘excusable neglect' of Federal Rule of Civil Procedure 6(b)(2), which requires ‘a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.'” MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (quoting Petrucelli, 46 F.3d at 1312); see also Teri Woods Publ'g, L.L.C. v. Williams, Civ. A. No. 11-6341, 2012 WL 2681424, at *2 (E.D. Pa. July 6, 2012) (“[G]ood faith alone does not equal good cause. Good cause requires a plaintiff to show good faith plus a reasonable basis for their failure to comply within the specified time limit” (internal citation omitted)).

         In evaluating whether good cause exists, a court should consider the following factors: “(1) the reasonableness of the plaintiff's efforts to effect service; (2) prejudice to the defendant because of untimely service; (3) whether the plaintiff has moved for an enlargement of time; and (4) whether the statute of limitations will bar the plaintiff's claims if the action is dismissed.” Mathies v. Silver, 450 Fed.Appx. 219, 222 (3d Cir. 2011) (citing MCI, 71 F.3d at 1097-98). However, the “primary focus of the Court's inquiry should be into Plaintiff's reasons for not complying.” McFadden v. Weiss, Civ. A. No. 13-2914, 2014 WL 5880097, at *2 (E.D. Pa. Nov. 13, 2014) (citing MCI, 71 F.3d at 1097).

         Plaintiff argues that this Court should grant it a sixty-day extension of time to serve Defendants, maintaining that it has established good cause for failing to serve Defendants within the allotted time. As detailed above, Plaintiff has submitted evidence that it, through its retained process-serving companies, has attempted to serve Defendants at five addresses, in two states, and at various times. It has inquired about Defendants' location through speaking with relatives and neighbors and has also utilized other researching techniques that included a three-screen search and a review of the records of the New York State Department of Motor Vehicles. These efforts clearly show that Plaintiff has made a good faith effort to serve Defendants. Moreover, we find that Plaintiff has provided a reasonable basis for its failure to serve within the time limit because the evidence demonstrates that Defendants no longer maintain a presence at their known addresses and, indeed, suggests that Defendants may be willfully evading service. There is also no indication that Defendants will be prejudiced in any way if we grant Plaintiff an extension of time. We therefore conclude that Plaintiff has set forth good cause for failing to effectuate service within the ninety days, and we grant the requested extension on that basis.

         B. Service ...


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