Tammy L. Barber, a single woman, Plaintiff,
Jaime and Jeremy Lilly, wife and husband; AZ Pool Supplies, Inc., a Nevada corporation, Defendants.
LAWRENCE O. ANDERSON, District Judge.
This Fair Labor Standards Act ("FLSA") action arises on Plaintiff's Motion for Order Authorizing Alternative Service, pursuant to Rules 4(e)(1), Federal Rules of Civil Procedure ("Fed.R.Civ.P."), and Rule 4.1(k), Arizona Rules of Civil Procedure ("Ariz.R.Civ.P."), filed on September 24, 2013. (Doc. 9) Plaintiff requests an order authorizing alternative service of the Summons, Complaint, and this Order by (1) e-mail (email@example.com), (2) facsimile ((480) 607-1904), and (3) certified mail, return receipt requested, to Defendants Jaime and Jeremy Lilly's ("Lillys") work and residential addresses, viz: 1) AZ Pool Supplies, Inc., 10267 North Scottsdale Road, Scottsdale, Arizona 85253, and 2) on North 37th Way,  Phoenix, Arizona 85050, due to Plaintiff's numerous, but unsuccessful attempts, to serve the Lillys at their business store and residence. ( Id. at 2-5) Plaintiff alleges that service of process "ha[s] proven impracticable" because the Lillys are avoiding service. ( Id. at 2-3)
This action was instituted on June 25, 2013. (Doc. 1) The Complaint alleges that Defendants failed to pay Plaintiff, a former employee of AZ Pool Supplies, Inc., all wages earned for work she performed during her employment, including the failure to pay FLSA overtime hours worked. ( Id. at 4) Plaintiff seeks an award of unpaid overtime; liquidated damages; pre-judgment and post-judgment interest on unpaid back wages; and an award of attorneys' fees, court costs, and costs of litigation as proven pursuant to 29 U.S.C. § 216(b). ( Id. at 8) Subject matter jurisdiction is predicated upon 28 U.S.C. § 1331.
According to Plaintiff, with the exception of their home address, all of the Lillys' contact information was gleaned from the "Contact Us" portion of the AZ Pool Supplies' website, http://www.azpoolsupplies.com/contact-us/and has been independently confirmed. (Doc. 9 at 2 n.1) The Court has independently reviewed, and taken judicial notice of, the Nevada Corporation Commission's public records which indicate that AZ Pool Supplies' registered agent is Jaime Lilly with an address of 1022 Nevada Highway, Suite 139, Boulder City, Nevada 89005, and the corporate officers are Jaime E. Lilly, President and Secretary, and Jeremy Lilly, Treasurer and Director, each having the address of 10229 North Scottsdale Road, Suite C, Scottsdale, AZ 85253.
Plaintiff provides the Court with information from twelve affidavits that process server Bryan Curry spoke with a U.S. Postal carrier, who confirmed that, as of July 9, 2013, the Lillys lived at N. 37th Way residence in Phoenix, AZ 85050; on each attempt to serve process at the residence, someone looked through the front door's peephole, but would not open the door; and on different occasions, a young adolescent female looked through a window, but would not open the door. (Doc. 9-1, Exhibits ("Exhs.") A-L at 1-24) Further, printouts of text messaging from Sprint, confirming the Lillys are aware of Plaintiff's lawsuit. ( Id. Exh. M)
II. Alternative Service
Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of the summons and complaint must be satisfied. Omni Capital Int'l., Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987), superseded by statute on other grounds; S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007). Because service of process is the means by which a trial court obtains jurisdiction over a person, "[a] person is not bound by a judgment in a litigation to which he or she has not been made a party by service of process." Mason v. Genisco Technology Corp., 960 F.2d 849, 851 (9th Cir. 1992). Rule 4, Fed.R.Civ.P., governs the service of process in federal courts. "A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4." Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). Unless extended by the district court, "[a] plaintiff must serve all defendants with a copy of the summons and complaint within 120 days of filing a complaint." Robinson v. Heritage Elementary School, 2009 WL 1578313, *2 (D. Ariz. June 3, 2009) (citing Rule 4(m), Fed.R.Civ.P.).
Federal Rule of Civil Procedure 4(h) addresses service of process on an individual or a legal entity, such as a corporation, partnership, or limited liability company, within or outside a judicial district of the United States. It provides that unless otherwise provided by federal law or a defendant's waiver of service under Rule 4(d) has been filed, a person or legal entity may be served in any judicial district of the United States. Rule 4(h) provides, in relevant part, as follows:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to 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....
Rule 4(h)(1)(A)-(B), Fed.R.Civ.P.
Federal Rule of Civil Procedure 4(e)(1) provides, in part, that "[u]nless federal law provides otherwise, an individual... may be served in a judicial district of the United States by: (1) 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...." Rule 4(e)(1), Fed.R.Civ.P. Rule 4(e)(2)(C), Fed.R.Civ.P., authorizes service on a limited ...