Desiderio v. United States

1

CARMELITA M. DESIDARIO, Personal Representative of the Estate of PHILLIP R. CURLEY, deceased, Plaintiff, v. UNITED STATES OF AMERICA; JANELLE D. JONES, M.D.; and JOY G. HARRISON, M.D., Defendants.

No. 1:23-cv-00057-SCY-KRS

United States District Court, D. New Mexico

April 18, 2023

ORDER DENYING WITHOUT PREJUDICE MOTION FOR SERVICE BY PUBLICATION

KEVIN R. SWEAZEA, MAGISTRATE JUDGE

THIS MATTER is before the Court on Plaintiff's Motion for Order Authorizing Service by Publication, (Doc. 18), filed April 14, 2023. Plaintiff seeks to serve Defendant Joy G Harrison, M.D., by publication pursuant to Fed.R.Civ.P 4(e)(1) and NMRA, Rule 1-004(J). Having considered the Motion, record of the case, and relevant law, the Court denies the Motion without prejudice.

Plaintiff states she attempted to find contact information for Defendant Harrison at her last known place of employment in Deming, New Mexico, and was told that Defendant Harrison has not worked there for a few years and the employer had no forwarding address. (Doc. 18) at 1. A process serving company discovered a possible residence for Defendant Harrison in Brooklyn, New York, and spoke to two individuals who advised that Defendant Harrison did not live at that address. The company discovered another possible residence in Oyster Bay New York, but was told no one with Defendant Harrison's name was at that address. Id. at 2. Plaintiff states “[t]he above attempts at personal service are attested to in the affidavits of Jack Rakowski, Luis Arriaga, and Richard Schultz of [Same Day Process Service], which are attached as Exhibit A;” however no affidavits are attached to the Motion or filed on the docket. Id.

Federal Rule of Civil Procedure 4(e) authorizes several procedures for effecting process on any competent adult individual found within the United States. The Rule provides that service may be effected in any manner specifically authorized by federal law for service, including: under the waiver of service provisions of Rule 4(d); by personally delivering the summons and complaint to the individual being served; by leaving the summons and complaint at the individual's dwelling house or usual place of abode with a person of suitable age and discretion; or by delivering the summons and complaint by an agent appointed by the individual to receive service.

While Rule 4(e) does not specifically provide for service by publication, Rule 4(e)(1) allows for service “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). New Mexico Rule of Civil Procedure 1-004(J) allows service by publication in limited circumstances:

Upon motion, without notice, and showing by affidavit that service cannot reasonably be made as provided by this rule, the court may order service by any method or combination of methods, including publication, that is reasonably calculated under all of the circumstances to apprise the defendant of the existence and pendency of the action and afford a reasonable opportunity to appear and defend.

NMRA, Rule 1-004(J). In addition, Rule 1-004(K) requires that a “copy of the proposed notice to be published shall be attached to the motion,” “[s]ervice by publication shall be made once each week for three consecutive weeks unless the court for good cause shown orders otherwise,” and publication of notice of the pendency of the action must be “in a newspaper of general circulation in the county where the action is pending” and “in a newspaper of general circulation in the county which reasonably appears is most likely to give the defendant notice of the action.” NMRA, Rule 1-004(K)(1); see also Rule 1-004(K)(2)(a)-(d) (providing requirements for information to be included in the notice of the pendency of the action).

Here although Plaintiff states that an affidavit was filed with the Motion, no affidavit is attached. Also, Plaintiff did not attach a copy of the proposed notice and does not state in which newspapers she plans to publish the notice, as required by Rule 1-004(K). For these reasons, the Court will deny Plaintif...