United States District Court, D. Arizona
DOMINIC W. LANZA UNITED SLATES DISTRICT JUDGE
before the Court is Plaintiff Sam Sobh's Motion for
Alternative Service (Doc. 8). For the following reasons, the
motion is granted.
November 14, 2018, Sobh filed the Complaint against
Defendants Phoenix Graphix Incorporated, PGI/Phoenix Graphix
Incorporated Profit Sharing Plan and Trust, Brian Kotarski,
and Anne Kotarski. (Doc. 1.) On December 10, 2018, Sobh filed
a Motion for Alternative Service (Doc. 6), which the Court
denied without prejudice for failure to attach the
Certificate of Due Diligence purported to be attached as
Exhibit A, and for failure to cite the laws or rules of civil
procedure that would authorize the requested relief (Doc. 7).
On December 31, 2018, Sobh filed the present motion (Doc. 8).
asserts a belief that Defendants “Brian Kotarksi and/or
Anne Kotarski” are the administrator of Defendant
PGI/Phoenix Graphix Incorporated Profit Sharing Plan and
Trust. (Doc. 8 at 2.) Sobh also asserts that Brian and Anne
Kotarski are the owners of Phoenix Graphix Incorporated.
(Id.) All of the attempts to serve the Defendants
have been directed at serving Brian and Anne Kotarski.
explains-and the Certificate of Due Diligence signed by
process server Richard G. Younger (see id. Ex. A)
corroborates-that the process server attempted service
(presumably for all named Defendants) at Phoenix Graphix
Incorporated's business address on four separate dates.
(Id. at 2.) On November 21, 2018, an employee
informed the process server that owners Brian and Anne
Kotarski were out of the office until after Thanksgiving.
(Id.) On November 26, 2018, at 11:15 a.m., the
process server was told that Brian and Anne Kotarski were out
to lunch. (Id.) On November 28, 2018, at 1:30 p.m.,
the process server was told that Brian and Anne Kotarski were
in a meeting. (Id.) On November 30, 2018, the
process server called to confirm that Brian and Anne Kotarski
were in the office, but when he arrived at 2:15 p.m., they
had already left for the day. (Id.) Additionally,
the process server twice attempted service at Brian and Anne
Kotarski's residential address but was unable to enter
the gate to the community. (Id. at 3.)
4(e) of the Federal Rules of Civil Procedure provides, in
relevant part, that an individual “may be served in a
judicial district of the United States by 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). A corporation or unincorporated association subject
to suit under a common name may be served by the same means.
4.1(k) of the Arizona Rules of Civil Procedure provides that
“[i]f a party shows that the means of service provided
in Rule 4.1(c) through Rule 4.1(j) are impracticable, the
court may-on motion and without notice to the person to be
served-order that service may be accomplished in another
manner.” The means of service provided in Rule 4.1(c)
through 4.1(j) include some of the means of service attempted
by Sobh. See Fed. R. Civ. P. 4.1(d); 4.1(i).
Arizona law, the standard for impracticability under Rule
4.1(k) “requires something less than the ‘due
diligence' showing required before service by publication
may be utilized.” Blair v. Burgener, 245 P.3d
898, 903 (Ariz.Ct.App. 2010). “[T]he showing for
alternative service requires something less than a complete
inability to serve the defendant because the defendant's
current address is unknown or the defendant completely has
avoided service of process.” Id. at 904. In
the context of Rule 4.1(k), “impracticable” means
that the traditional means of service have proven to be
“extremely difficult or inconvenient.”
Id. at 903.
the process server attempted to serve the Kotarskis at their
place of business four times between November 21 and November
30 (one was the day before Thanksgiving, a day when many
people are not at work). The process server also attempted
service at their place of residence on two consecutive days
but could not gain access to the gated community. It does not
appear that any attempt at service has been made since
December 1, 2018. The Court disagrees with Sobh's
assessment that he has undertaken “great effort”
(Doc. 8) to effectuate personal service on Defendants.
Nevertheless, “great effort” is not the standard
for impracticability, and courts have found similar levels of
effort to satisfy the impracticability standard.
Blair, 245 P.3d at 903-04 (attempted service at
place of business and place of residence on five different
days at different times satisfied standard); Bank of New
York Mellon v. Dodev, 2018 WL 6132853, *7-8
(Ariz.Ct.App. 2018) (attempted service on five occasions, at
different times of day satisfied standard). Thus, the Court
finds that the traditional means of service have proved
alternative service of process is appropriate, the Court now
analyzes whether Plaintiff's proposed method of
alternative service “comport[s] with constitutional
notions of due process” such that it is
“reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and
afford them an opportunity to present their
objections.” Rio Properties, Inc. v. Rio Int'l
Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002).
seeks leave of the Court to effectuate service by (1) mailing
copies of the documents to the business address of Phoenix
Graphix Incorporated, (2) mailing copies of the documents to
Brian and Anne Kotarski's residential address, and (3)
leaving copies at the business address of Phoenix Graphix
Incorporated. (Doc. 8 at 3.) Sobh knows both the business
address and residential address of the Kotarskis, and the
office staff gave Sobh's process server information
suggesting that the Kotarskis are generally physically
present in the office (although they were not available at
the times when service was attempted). Mailing to a business
address is required under Arizona Rule 4.1(k), and combined
with the other two proposed means of service, the Court finds
that the proposed method of alternative service is reasonably
calculated to apprise the Kotarskis of the pendency of the
action and afford them the opportunity to present their
objections. BMO Harris Bank, N.A. v. Guthmiller,
2014 WL 2600362, *3-4 (D. Ariz. 2014).
IT IS ORDERED that Plaintiff Sam Sobh's
Motion for Alternative Service (Doc. 8) is granted.
IS FURTHER ORDERED that Plaintiffs counsel shall
file an affidavit upon completion of service specifying the
date and details on which ...