Solis v. Arizona Movers and Storage Inc.

          ORDER

          James A. Teilborg Senior United States District Judge.

         Pending before the Court is Plaintiff's motion for alternative service as to Defendant Hashem Abouzeid and a motion for attorney's fees. (Doc. 17).^[1] Plaintiff offers evidence that Defendant Abouzeid has been evading service. (Id.). As a result, Plaintiff seeks alternative service as permitted under the Arizona Rules of Civil Procedure (which is permitted under the Federal Rules). (Id. at 2-3). Specifically, Federal Rule of Civil Procedural 4(e)(1) says, “an individual… may be served…by: (1) following state law for serving a summons in an action brought in the courts of general jurisdiction in the state where the district court is located….”

         Plaintiff never cites which Rule of the Arizona Rules of Civil Procedure she seeks to use for alternative service. However, she does cite to an opinion of the Arizona Court of Appeals dealing with service by publication to state she is not seeking service by publication. (Id.).

         The Arizona Rules of Civil Procedure permit service by publication in certain circumstances. Specifically, Arizona Rule of Civil Procedure 4.1(1) states:

(1) Service by Publication.

(1) Generally. A party may serve a person by publication only if:

(A) the last-known address of the person to be served us within Arizona but:

(i) the serving party, despite reasonably diligent efforts, had been unable to ascertain the person's current address; or

(ii) the person to be served has intentionally avoided service of process; and

(B) service by publication is the best means practicable in the circumstance for providing the person with notice of the action's commencement.

Ariz. R. Civ. P. 4.1(1). The Rule then goes on to explain how a plaintiff must accomplish service by publication.

         Under Arizona law, a plaintiff does not need, and should not seek, advance permission to serve by publication. Ritchie v. Salvatore Gatto Partners, 222 P.3d 920, 923 n.4 (Ariz.Ct.App. 2010) (“The decision whether to pursue personal service or service by publication is that of the plaintiff, not the court [and] [b]ecause the court does not preauthorize service by publication, the determination whether publication constitutes adequate service is made later in the case.”).

         In this case, however, Plaintiff seeks alternative service not by publication, but by social media and by mailing a copy counsel for Defendant Abouzeid in another matter. (Doc. 17 at 4). Plaintiff obtains this idea from Ruffino v. Lokosky, 425 P.3d 1108, 1113 ¶16 (Ariz.Ct.App. 2018), which held: “Given our present society, we agree with the superior court that modern methods of communication, especially email, were more likely to give [Defendant] notice of a suit than publication in a newspaper distributed in a rural area 70 miles from [Defendant's] Scottsdale home.” Thus, in Ruffino, the Arizona Court of Appeals set aside a default judgment when service was by publication under Arizona Rule of Civil Procedure 4.1(1)(B), finding that publication was not the “best” means for providing notice.

         In its opinion, the Arizona Court of Appeals cited Arizona Rule of ...