United States District Court, S.D. Alabama, Southern Division
F. BIVINS UNITED STATES MAGISTRATE JUDGE
action is before the Court on Plaintiff Mobtown Merch,
LLC's Second Motion for Service by Publication, Email, or
U.S. Mail (Doc. 8) and Defendant Moh-BEEL, LLC's document
titled “Prayer for Relief/Recommendation” (Doc.
11). A status conference was duly noticed and conducted on
March 22, 2019. (See Docs. 16, 18). Although notice
of the status conference was provided to Defendants at the
post office box address listed on documents Defendant
Frederick F.B. Sims filed with the Court, no one appeared on
behalf of Defendants Sims or Moh-BEEL, LLC.
of background, Plaintiff filed the instant action against
Defendants Moh-BEEL, LLC and Frederick F.B. Sims on March 19,
2018. (Doc. 1). Subsequent thereto, Plaintiff filed a motion
seeking service by publication. (Doc. 4). In the motion and
the accompanying affidavits of Plaintiff's counsel, J.
Hunter Adams, and Plaintiff's process server, Jim
Johnson, Plaintiff reported that Johnson had made two
attempts to locate Frederick F.B. Sims (“Sims”),
a named Defendant and registered agent for Defendant
Moh-BEEL, LLC, at ¶ 212 S. Dearborn Street address in
Mobile, Alabama; however, Sims had leased the house to
another individual, who provided a telephone number for Sims.
(Doc. 4-1). According to the process server, he contacted
Sims at the telephone number, identified himself to Sims, and
advised Sims that he had a “delivery” for him.
(Id.). The process server averred that Sims advised
him that he was working out of the country, in Mexico, and
that he was not sure when he would be returning.
(Id.). The process server further asserted that he
gave Sims his name and phone number, asked Sims to call when
him when he returned, and that, in response, Sims
disconnected the call. (Id.).
Plaintiff has presented evidence that its counsel, J. Hunter
Adams, communicated with Sims via email immediately prior to
the instant litigation; however, once notified of the filing
of the lawsuit via email, Sims ceased responding to email
communications. (See Doc. 4-1 at 2; Doc. 6-2 at 3;
Docs. 6-3, 8-6, 8-7, 8-8). Thus, Plaintiff requested,
pursuant to Rule 4(e)(1) of the Federal Rules of Civil Procedure
and Rule 4.3 of the Alabama Rules of Civil Procedure, that
the Court allow service by publication on the ground that the
current address of Sims was unknown and that Sims and
Moh-BEEL, LLC had avoided service. (Doc. 4 at 1-2).
order dated May 8, 2018 denying Plaintiff's motion, the
Court observed that “[b]ased upon the record before the
Court, it appears that Defendant Sims is in Mexico, and thus,
is not ‘within a judicial district of the United
States.'” (Doc. 5 at 3). The Court stated that
“[i]f that [was] the case, Plaintiff would be required
to seek service under Fed.R.Civ.P. 4(f) as opposed to
Fed.R.Civ.P. 4(e).” (Id.). Because it was not
clear which of the two provisions should apply under the
circumstances, Plaintiff's motion was denied, and
Plaintiff was granted leave to file an amended motion
specifically addressing which of the two provisions should
apply and whether service by publication was permissible.
next sought permission to serve Defendants by email and U.S.
mail pursuant to Fed.R.Civ.P. 4(f)(3), which allows a party
to use alternative methods to serve a defendant in a foreign
country if the party obtains permission of the court and the
requested methods are not otherwise prohibited by
international agreement. Fed.R.Civ.P. 4(f)(3). In an order
dated June 15, 2018, the Court observed that “[w]hile
courts have held that Rule 4(f)(3) is neither a last resort
nor extraordinary relief, ‘a district court, in
exercising the discretionary power permitted by Rule 4(f)(3)
may require the plaintiff to show that they have
“reasonably attempted to effectuate service on
defendant and that the circumstances are such that the
district court's intervention is necessary to obviate the
need to undertake methods of service that are unduly
burdensome or that are untried but likely
futile.”'” (Doc. 7 at 2-3) (quoting
Int'l Designs Corp., LLC v. Quingdao SeaForest Hair
Prods. Co., Ltd., 2018 U.S. Dist. LEXIS 3038, at *8,
2018 WL 2364297, at *3 (S. D. Fla. Jan. 4, 2018) (in turn
quoting FMAC Loan Receivables v. Dagra, 228 F.R.D.
531, 534 (E.D. Va. 2005))). The Court concluded that
Plaintiff had not made the showing required under Rule
4(f)(3) because Sims had provided Plaintiff's counsel a
California mailing address when he was still responding to
email prior to the filing of this lawsuit (see Doc.
6-3 at 5), but it did not appear that Plaintiff had attempted
to serve Sims at the California mailing address. (Doc. 7 at
3-4). The Court further found that because the record
reflected that Plaintiff had undertaken steps to serve
Defendants, it was appropriate to extend the deadline for
service set forth in Federal Rule of Civil Procedure 4(m).
(Id. at 4). In response to the Court's Order,
Plaintiff timely filed the instant motion requesting
permission to serve Defendants by publication, email, or U.S.
mail. (Doc. 8).
Plaintiff's Second Motion for Service by Publication,
Email, or U.S. Mail.
noted supra, the Federal Rules of Civil Procedure
provide for service of process pursuant to the law of the
state “where the district court is located . . .
.” Fed.R.Civ.P. 4(e)(1). Thus, because this case is
pending in federal district court in Alabama, service of
process can be accomplished by any means authorized by
Alabama law. The circumstances in which service by
publication is permitted in Alabama are outlined by Alabama
Rule of Civil Procedure 4.3. Rule 4.3(c) authorizes service
by publication upon a defendant who avoids service. It
provides in pertinent part that:
[w]hen a defendant avoids service and that defendant's
present location or residence is unknown and the process
server has endorsed the fact of failure of service and the
reason therefor on the process and returned it to the clerk
or where the return receipt shows a failure of service, the
court may, on motion, order service to be made by
Ala. R. Civ. P. 4.3(c). Thus, Plaintiff must show (1) that
Sims has avoided service; (2) that his present location or
residence is unknown; and (3) that the process server has
failed to perfect service upon him. See Am. Indoor
Football Ass'n v. Lockwood, 267 F.R.D. 663, 666
(M.D. Ala. May 7, 2010).
has made the requisite showing in this case. Plaintiff has
made repeated attempts to serve Defendants Sims and Moh-BEEL,
LLC at the 212 S. Dearborn Street address, which is the
address listed with the Alabama Secretary of State as the
address for Moh-BEEL, LLC and for Sims, the registered agent
for Moh-BEEL, LLC. (See Doc. 6-1 at 2). In addition,
Plaintiff has attempted to serve Defendants via certified
mail at the California address Sims provided to
Plaintiff's counsel. The evidence before the Court reflects
that Sims is well aware of this litigation but has avoided
service. Indeed, Sims was communicating with Plaintiff's
counsel via email up until the complaint was filed. (Doc. 4-1
at 2). Once Plaintiff's counsel notified him that a
lawsuit had been filed, he stopped responding to emails.
(See id.; Docs. 8-6, 8-7, 8-8). Additionally, one of
Plaintiff's process servers reached Sims by telephone on
a number provided by Sims' tenant at the 212 S. Dearborn
address, and Sims discontinued the call after the process
server identified himself as a process server, told Sims he
had a delivery for him, and asked Sims to notify him when he
returned to the area. (Doc. 4-2). Also, Sims filed a letter with
the Court contending that his tenant in California did not
have his consent to accept the certified mail on his behalf.
(Doc. 10). However, Sims does not and cannot allege that he
did not actually receive the summons and complaint, as he
subsequently filed a document, on behalf of Moh-BEEL, LLC, In
this case, Defendant Sims has asserted, in an unsworn letter
to the Court, that a tenant at the California address signed
for the certified mail but did not have the authority to do
so. (Doc. 10 at 1). The signature on the return receipt is
not legible, and it is not clear whether the return receipt
was for Sims, individually, or for Sims, on behalf of
Moh-BEEL, LLC. (See id. at 2). denying the
allegations contained in the complaint. (See Doc.
11). Notably, in Sims' filings with the Court (Docs. 13,
15), he has listed a local post office box, but he has not
included any information regarding his residence, his
whereabouts, or the location of Moh-BEEL, LLC. Based on the
above, the Court concludes that Sims, individually, and as
registered agent for Moh-BEEL, LLC, is avoiding service, that
Sims' address and that of Moh-BEEL, LLC are unknown, that
the process server has repeatedly attempted but has been
unable to serve Sims personally, and that an attempt to serve
Sims by certified mail has likewise failed. See Davis v.
Summler, 2014 U.S. Dist. LEXIS 52339, at *1-4, 2014 WL
1492876, at *1-2 (M.D. Ala. April 16, 2014) (finding that
publication was permitted under Alabama law where evidence
established that company accepted preservation letter sent by
certified mail but rejected service of complaint sent to the
same address by certified mail, that the process server
unsuccessfully attempted to serve company, and that the
location of the company and its agent were unknown).
Accordingly, for the reasons set forth above, Plaintiff's
motion to serve Defendants by publication is granted.
more than ninety (90) days have passed since the filing of
Plaintiff's complaint, the complaint is subject to
dismissal without prejudice pursuant to Federal Rule of Civil
Procedure 4(m). However, the Court finds good cause for
Plaintiff's failure to serve Defendants; thus, the Court
extends the time within which service must be ...