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Bmo Harris Bank, N.A. v. Guthmiller

United States District Court, D. Arizona

June 9, 2014

BMO Harris Bank, N.A., Plaintiff,
Marty R. Guthmiller, et al., Defendants.


JAMES A. TEILBORG, District Judge.

Pending before the Court is Plaintiff BMO Harris Bank, N.A.'s Ex Parte Motion for an Order Permitting Alternate Service of Performance Audio Video, Inc. ("Performance") pursuant to Federal Rules of Civil Procedure ("Federal Rules") 4(h)(1)(A) and 4(e)(1). (Doc. 11). Plaintiff requests an order authorizing alternative service of the Summons, Complaint, and this Order by: "(1) mailing process to Performance at its last known physical address; (2) emailing process to [Performance's president and statutory agent Marty] Guthmiller's business email account; and (3) mailing and emailing process to Guthmiller's bankruptcy counsel." ( Id. at 1-2).


On February 12, 2014, Plaintiff instituted this action for breach of contract against Marty R. Guthmiller ("Guthmiller") and for breach of guaranty against Performance. ( See Doc. 1 at 4-5). Plaintiff initiated these claims as a result of Guthmiller's alleged default on certain loans guaranteed by Performance. ( Id. at 2-3). Guthmiller is Performance's "sole statutory agent" for service of process. (Doc. 11 at 4).

Plaintiff initially asked Guthmiller's current bankruptcy counsel to accept service of the Complaint and Summons on behalf of Guthmiller. (Doc. 11-1 at 13). Upon consultation with Guthmiller, Guthmiller's counsel stated he was not authorized to accept such service of process. ( Id. at 12-13). Later, Plaintiff's counsel approached Guthmiller's bankruptcy counsel in Guthmiller's presence to ask if the bankruptcy counsel could accept service and was again denied. ( Id. at 11-13). Next, Plaintiff's process server went to Guthmiller's home address but because the property was gated and there was no indication of Guthmiller, service was unsuccessful. (Doc. 8 at 1). Finally, the process server went to Performance's business address to serve Guthmiller. (Doc. 10 at 1). After the process server called Guthmiller's name, Guthmiller jumped in his car, "drove away at a high speed and almost roll[ed] on [the process server]." ( Id. ) As a result, Plaintiff claims that it is left with "no effective - or safe - means to accomplish service." (Doc. 11 at 2).

Plaintiff knows Guthmiller's business email address, id. at 4, and has confirmed Performance's business address. (Doc. 10 at 1). Additionally, Plaintiff knows the email and mailing address for Guthmiller's bankruptcy counsel, Edwin B. Stanley. (Doc. 11-1 at 20). In view of the safety concerns that Guthmiller has imposed on Plaintiff's process server, Plaintiff requests an order pursuant to Federal Rules 4(h)(1)(A) and 4(e)(1) permitting Plaintiff to satisfy service of process to Performance by: "(1) mailing [the Summons, Complaint, and this Order] to Guthmiller at Performance's physical business address via First Class Mail; (2) emailing the same to Guthmiller's business email account,; and (3) mailing and emailing [the Summons, Complaint, and this Order] to Guthmiller's bankruptcy counsel of record." (Doc. 11 at 5).


The procedural requirement of service of the summons must be satisfied before a federal court may exercise personal jurisdiction over a defendant. Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987), superseded by statute on other grounds; SEC v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007). Accordingly, "[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), amended by 807 F.2d 1514 (9th Cir. 1987).

Federal Rule 4(e)(1) allows summons to be served on an individual in a manner that follows "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." Under Arizona law, when personal service has become impracticable, Arizona Rule of Civil Procedure ("Arizona Rule") 4.1(k) authorizes service by alternative means as follows:

Alternative or Substituted Service. If service by one of the means set forth in the preceding paragraphs of this Rule 4.1 proves impracticable, then service may be accomplished in such manner, other than by publication, as the court, upon motion and without notice, may direct. Whenever the court allows an alternate or substitute form of service pursuant to this subpart, reasonable efforts shall be undertaken by the party making service to assure that actual notice of the commencement of the action is provided to the person to be served and, in any event, the summons and the pleading to be served as well as any order of the court authorizing an alternative method of service, shall be mailed to the last known business or residence address of the person to be served.

Ariz. R. Civ. P. 4.1(k) (emphasis added).

If alternative service of process is appropriate, any proposed alternative method of service must comport with constitutional notions of due process. Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). To meet such a requirement, the alternative method of service "must be reasonably calculated under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Id. at 1016-17 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).


Plaintiff has made the requisite showing under Federal Rule 4(e)(1) to justify alternative service. For the Court to grant Plaintiff's Motion for Alternate Service, service ...

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