United States District Court, D. Arizona
Dominic W. Lanza United Slates District Judge
before the Court is Plaintiff's Motion to Extend the
Summons and for Alternative Service of Quality Recovery
Services, Inc. (Doc. 30). For the following reasons, the
motion is granted in part and denied in part.
Amicia Lovelace filed the above-captioned lawsuit on November
15, 2018, and the summons for Defendant Quality Recovery
Services, Inc. (“QRS”) issued on the same day.
(Doc. 4-1 at 1.) On December 4, 2018, Plaintiff's process
server attempted to serve QRS at 11659 B Hwy 3 North,
Hampton, GA 30228, but was unable to do so because the
address does not exist. (Doc. 30-2.) On February 13, 2019,
the deadline for service of the summons pursuant to Rule 4(m)
of the Federal Rules of Civil Procedure, Plaintiff filed the
motion at hand, noting that she was unable to serve QRS at
the only physical address that QRS provided to the State of
Georgia and that she did not succeed in further attempts to
obtain another address. (Doc. 30 at 3.) Plaintiff seeks a
60-day extension of the service deadline and also seeks leave
of the Court to serve QRS by alternate means.
4(m) of the Federal Rules of Civil Procedure provides that if
a defendant is not served within the specified timeframe, the
Court must either “dismiss the action without prejudice
against that defendant or order that service be made within a
specified time.” Moreover, “if the plaintiff
shows good cause for the failure, the court must extend the
time for service for an appropriate period.”
Court finds that Plaintiff has shown good cause for the
failure to serve QRS and grants Plaintiff's request for
an additional 60 days in which to serve QRS.
further requests that the Court “permit service of
process upon QRS by first-class U.S. mail to the Post Office
box address that is currently on file with the State of
Georgia . . . coupled with the filing of a Certificate of
Mailing issued by the United States Postal Service.”
(Doc. 30 at 4.) Plaintiff failed to cite any laws or rules
that would allow the Court to grant this request.
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.
4.2 of the Arizona Rules of Civil Procedure details the
available state law procedures for serving process outside
Arizona. It appears to the Court that there is only one
permissible way to serve a limited liability company located
outside of Arizona but within the United States, and that is
“by delivering a copy of the summons and the pleading
being served to a partner, 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.” Ariz. R. Civ.
P. 4.2(h). It is not clear from the face of Rule 4.2(h)
whether mailing a copy of the summons and the pleading to a
Post Office box address, coupled with the filing of a
Certificate of Mailing issued by the United States Postal
Service, would satisfy the Rule. Cf. Barlage v.
Valentine, 110 P.3d 371, 375 (Ariz.Ct.App. 2005)
(holding that under certain circumstances, a postal service
may be an actual agent for the purpose of receiving
deliveries). Without the benefit of any briefing from
Plaintiff, the Court will not decide whether Rule 4.2(h)
permits the manner of service Plaintiff contemplates under
the facts of this case.
Plaintiff may serve QRS by following Georgia law regarding
service of process. Fed.R.Civ.P. 4(e)(1); Fed.R.Civ.P.
4(h)(1)(A). Again, in the absence of any briefing on the
matter, the Court is disinclined to conduct extensive
research on the requirements under Georgia law for service of
process. Nevertheless, the Court notes that under Georgia
Whenever a limited liability company shall fail to appoint or
maintain a registered agent in this state or whenever its
registered agent cannot with reasonable diligence be found at
the registered office, then the Secretary of State shall be
an agent of such limited liability company upon whom any
process, notice, or demand may be served. Service on the
Secretary of State of any such process, notice, or demand
shall be made by delivering to and leaving with him or her or
with any other person or persons designated by the Secretary
of State to receive such service a copy of such process,
notice, or demand. The plaintiff or his or her attorney shall
certify in writing to the Secretary of State that the limited
liability company failed either to maintain a registered
office or appoint a registered agent in this state and that
he or she has forwarded by registered or certified mail or
statutory overnight delivery such process, notice, or demand
to the most recent registered office listed on the records of
the Secretary of State and that service cannot be effected at
Ga. Code Ann. § 14-11-209 (emphasis added). There does
not appear to be any impediment preventing Plaintiff from
serving QRS in accordance with this method.
Court will thus deny without prejudice Plaintiff's
request to serve QRS by “alternative means” that
require leave of the Court. Plaintiff is encouraged to take
advantage of the means that are available to her under Rule 4
of the Federal Rules of Civil Procedure, which encompass any
means available to her under Arizona or Georgia law. If
Plaintiff determines that she cannot serve QRS by any of
those means, she may file, within 14 days of the date of this
Order, a new motion for leave to serve by alternative means.
That motion must clearly explain what rules or laws permit
the Court to grant the relief requested. The Court notes that
Rule 4.2(b) of the Arizona Rules of Civil Procedure permits a
party to serve process outside Arizona, but within the United
States, “in the same manner as provided in Rules 4.1(d)
through (j), ” which does not encompass Rule 4.1(k)
(permitting a court to order that service of process
within Arizona may be accomplished in a manner not
otherwise allowed under the Rules).
IT IS ORDERED granting in part and denying
in part Plaintiffs Motion to Extend the Summons and for
Alternative Service of Quality Recovery Services, Inc. (Doc.
IS FURTHER ORDERED that the deadline for Plaintiff
to serve QRS is extended to 60 days ...