United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
case is before the court on Defendant Robert Park
Wilson's Motion for Relief From Final Judgment Pursuant
to Fed.R.Civ.P. 60(b)(4) and Motion to Quash Service by
Publication. (Doc. # 100). The parties have fully briefed the
motion. (See Docs. # 101, 102). Following a status
conference, and pursuant to the court's order, the
parties submitted a Joint Report discussing the undisputed
facts, alongside their respective proposed findings of fact.
(See Docs. # 112, 112-1, 112-2, & 112-3). The
court held oral argument on the motion on September 6, 2017,
and the parties have agreed that an evidentiary hearing is
unnecessary. (Doc. # 112 at 4). After careful review of the
motion and evidentiary submissions, and with the benefit of
oral argument, the court concludes that Defendant's
Motion for Relief From Final Judgment (Doc. # 100) is due to
Procedural History of This Action
September 2008, Plaintiffs filed this suit in the Circuit
Court of Jefferson County, Alabama. (See Doc. # 1-1
at 2-22). Plaintiffs identified Defendant Wilson as a real
estate investor, a managing member of DPG Watts, LLC, and the
secretary for Denali Investment Group, Inc. (Id. at
2). They alleged that Wilson conducted business in Alabama.
(Id.). They asserted in the initial complaint that
Wilson could be served at the offices of Denali Investment
Group. (Id. at 22).
suit was filed, the Circuit Court's clerk stated in an
affidavit that Wilson had refused to accept service on
September 12, 2008. (Id. at 28). The clerk sent a
copy of the summons and complaint to Wilson at Denali
Investment Group's offices in Birmingham. (Id.).
Accordingly, the clerk deemed Wilson to be served in
September 2008. (Id.). In October 2008, Defendant
Dan Pena removed this case to this court. (Doc. # 1).
February 2011, Plaintiffs moved for the court to enter
default against Defendants Wilson, DPG Watts, and Denali
Investment Group. (Doc. # 50). The Clerk of Court entered
default against Wilson on February 28, 2011. (Doc. # 52). In
March 2011, Plaintiffs then moved for default judgment
against Wilson, DPG Watts, and Denali Investment Group. (Doc.
# 53). On March 24, 2011, the Magistrate Judge (who was then
presiding over this action) held a hearing on the default
judgment motion. (Doc. # 57 at 1). During the hearing, he
found that Plaintiffs had failed to properly serve DPG Watts.
the hearing, the Magistrate Judge reviewed the record and
questioned the service effectuated on Defendants Wilson and
Denali Investment Group. (Id.). He acknowledged the
Circuit Court clerk's affidavit, but questioned whether
Wilson could be served in his individual capacity at Denali
Investment Group. (Id. at 1 n. 1). The Magistrate
Judge ordered Plaintiffs within 20 days to either prove that
they had completed service on Wilson or attempt service.
(Id. at 1).
response, Plaintiffs moved to serve Wilson and three other
Defendants by publication. (Doc. # 59 at 1). Plaintiffs
claimed that service of Wilson had already been completed
pursuant to Alabama Rule of Civil Procedure 4(e) by mailing
the summons and complaint to his then-current address after
he had refused service. (Id. at 4). They argued that
this method of service complied Federal Rule of Civil
Procedure 4(e)(1). (Id. at 4-5). They further
explained that their attorney had attempted to send documents
to Wilson at the “address provided on the Secretary of
State of Alabama's website, ” but the documents
were returned to sender because Wilson was not at the address
and no forwarding address was available. (Id. at 5).
Plaintiffs averred that, in April 2011, Plaintiffs'
counsel conducted a search of public records on Lexis and
sent a process server to the most recent address discovered
in that search. (Id.). Plaintiffs' process
server discovered a mailbox and a vacant lot at that address.
(Id.). Based upon these events, Plaintiffs argued
that Wilson both “refused to accept service and
attempted to dodge service by providing multiple fictitious
or erroneous addresses.” (Id.). They asked
this court to either find that Wilson had been served in 2008
or grant them leave to serve him by publication.
(Id. at 5-6). Among other exhibits, Plaintiffs filed
an affidavit from their process server. (See Doc. #
April 15, 2011, the Magistrate Judge denied Plaintiffs'
initial motion for service by publication. (See Doc.
# 60). With regard to Defendant Wilson, he found that the
affidavit proffered by Plaintiffs failed to meet the
requirements of Alabama Rule of Civil Procedure 4.3(d)
because neither Plaintiffs nor their counsel issued the
affidavit. (Id. at 2). Moreover, he found that
Plaintiffs had failed to attempt service on Wilson properly
in his individual capacity. (Id. at 2-3 n. 2). The
Magistrate Judge directed Plaintiffs to attempt to serve
Wilson properly in his individual capacity. (Id. at
March 31, 2011, the court issued Plaintiffs a summons for
Wilson. (See Doc. # 63). The summons stated that
Wilson resided at 8610 Eastern Hills Drive, # D, Cottondale,
Alabama 35453. (Id. at 1). Carl Robinson returned
the summons unexecuted in April 2011 because no residence
existed at the address listed on the summons. (Id.
at 2; Doc. # 66).
2011, Plaintiffs again requested leave to serve Wilson by
publication. (Doc. # 67). They incorporated by reference
their earlier motion for leave to serve by publication.
(Id. at 1). In support of this renewed motion,
Plaintiffs' attorney filed a supporting affidavit, in
which he described his attempts to serve Wilson via mail and
process server in 2008 and 2011. (See Doc. # 67-1 at
5-6). Specifically, Plaintiffs' counsel discussed the
refused service in September 2008, the Circuit Court's
mailing to Wilson in September 2008, his attempts to send
documents to Wilson, and the process server's attempt to
serve Wilson in April 2011. (See id.). After
describing the failed attempts to serve Wilson,
Plaintiffs' counsel averred that Wilson had refused to
accept service and attempted to dodge service. (Id.
at 6). The attorney stated that Wilson's current address
was unknown and could not be ascertained through reasonable
diligence. (Id.). Plaintiffs' counsel never
mentioned in his affidavit to the court that Wilson had
relocated to Central America. (See generally Doc. #
Magistrate Judge reviewed the affidavit from Plaintiffs'
counsel and found that (1) four defendants, including Wilson,
had avoided service and (2) those Defendants could not be
located. (Doc. # 74 at 2). He recounted the standard for
authorizing service by publication under Alabama law
(id. at 1), and found that Plaintiffs had met their
burden to justify service by publication. (Id. at
2). Thus, the Magistrate Judge granted Plaintiffs ...