Dimitrov v. Stavatti Aerospace Limited

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Valentino Dimitrov, No. CV-23-00226-PHX-DJH 10 Plaintiff, ORDER v. Stavatti Aerospace Limited, et al., 13 Defendants.

15 Plaintiff Valentino Dimitrov (“Plaintiff”) has filed a “Motion to Extend Time for Alternative Service Upon Defendant Rudy Chacon” (Doc. 31). The Court must decide whether good cause exists to extend the service deadline under Federal Rule of Civil Procedure 4(m),1 and whether service is warranted under Arizona Rule of Civil Procedure 4.2.2 For the following reasons, the Court grants Plaintiff’s Motion.

20 I. Background 21 In March 2023, Plaintiff’s process server attempted to serve Defendant Rudy Chacon (“Defendant Chacon”) at his California address to no avail. (Doc. 14-3). The process server further represented that when she contacted Defendant Chacon via telephone, he indicated he recently moved to Arizona but declined to provide his new address. (Id.) In September 2023, upon Plaintiff’s request, the Court permitted Plaintiff Unless where otherwise noted, all Federal Rule references are to the Federal Rules of Civil Procedure.

28 2 Unless where otherwise noted, all Arizona Rule references are to the Arizona Rules of Civil Procedure.

1 to serve Defendant Rudy Chacon (“Defendant Chacon”) in accordance with Arizona Rule 4.1(k), which governs alternative means of service “within Arizona”.

3 (Doc. 30). The Court allowed Plaintiff until October 6, 2023, to (1) send a copy of the relevant documents via First Class U.S. mail to the Defendant Chacon’s last-known address; and (2) affix a copy of the relevant documents to the front door of Defendant Chacon’s last-known address. (Id. at 4). The Court specified that this last known-address must be Defendant Chacon’s Arizona address, not his California address.3 (Id. n.5). On the October 6, 2023, service deadline, Plaintiff filed the present Motion.

9 II. Discussion 10 Plaintiff requests the Court to (1) extend the service deadline to November 6, 2023; and (2) allow service of Defendant Chacon at his California address. (Doc. 31 at 2). The Court will address each request in turn.

13 A. Good Cause 14 Federal Rule 4(m) provides the following with respect to service deadlines: If a defendant is not served within 90 days after the complaint is filed, the 16 court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be 17 made within a specified time. But if the plaintiff shows good cause for the 18 failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). District courts enjoy broad discretion when making extension decisions under Rule 4(m). See In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). The Ninth Circuit has defined “good cause” to mean, at minimum, excusable neglect. Boudette v. Barnette, 923 F.2d 754, 755–56 (9th Cir. 1991). A district court may also consider whether the plaintiff has established the following: “(a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.” Id. at 756 (citing Plaintiff’s process server represents that when she attempted to serve Defendant Chacon at his California address and contacted Defendant Chacon via telephone, Defendant Chacon indicated he recently moved to Arizona but declined to provide his new address.

28 (Doc. 14-3).

1 Hart v. United States, 817 F.2d 78, 80-81 (9th Cir. 1987)).

2 Plaintiff contends good cause exists to extend the deadline for service on Defendant Chacon because all three Boudette factors are present. Plaintiff maintains Defendant Chacon received actual notice of the present action because Plaintiff contacted him in January 2023 in an effort to avoid litigation. (Docs. 31 at 3; 32 at 2). Plaintiff further states he is prejudiced because he believes “Defendant Chacon may have fled the United States and may be that residing internationally, possibly in Costa Rica,4 in an attempt to evade service[.]” (Doc. 31 at 4). The Court finds Plaintiff has shown good cause exists under Federal Rule 4(m) to extend the service deadline.

10 B. Alternative Service Under Arizona Rule 4.2(c) 11 Plaintiff also requests permission to serve Defendant Chacon at his California address. Plaintiff’s request is therefore governed by Arizona Rule 4.2, which authorizes service of process “outside Arizona.” Ariz. R. Civ. P. 4.2(c). Arizona Rule 4.2(c) provides the following procedure for extraterritorial service by mail: [] If a serving party knows the address of the person to be served and the 16 address is outside Arizona but within the United States, the party may serve the person by mailing the summons and a copy of the pleading being served 17 to the person at that address by any form of postage-prepaid mail that requires 18 a signed and returned receipt.

19 [] When the post office returns the signed receipt, the serving party must file an affidavit [of service.]

21 Ariz. R. Civ. P. 4.2(c)(1)–(2).

22 Plaintiff represents that “despite multiple attempts by Plaintiff’s counsel to locate Defendant Chacon’s Arizona address, no address for Defendant Chacon has been able to be located anywhere within the State of Arizona.” (Doc. 31 at 2). He further identifies nine California address he believes are associated with Defendant Chacon from 1977 through 2023. (Id. at 5–6). Thus, Plaintiff seeks to serve Defendant Chacon at his last- Plaintiff represents that Defendant Chacon indicated he maintains multiple foreign residences, including properties in Costa Rica. (Doc. 31 at 4). □□ known California address by affixing to the front door the relevant service documents. (d. □□ at 3).

3 In light of these circumstances, the Court will permit Plaintiff to serve Defendant 4|| Chacon’s at his last-known California address. However, Plaintiff must follow the || extraterritorial service by mail procedures as outlined under Arizona Rule 4.2(c).

6|| Tl. Conclusion 7 Plaintiff has shown good cause exists under Federal Rule 4(m) to extend the service || deadline to November 6, 2023. Plaintiff may attempt to serve Defendant Chacon at his last known California address by mailing the summons and a copy of the pleading to that || address by any form of postage-prepaid mail that requires a signed and returned receipt. || See Ariz. R. Civ. P. 4.2(c). Plaintiff must also file an affidavit of service that complies with Arizona Rule 4.2(c). See Ariz. R. Civ. P. 4.2(c)(2).

13 Accordingly, 14 IT IS ORDERED that Plaintiff Valentino Dimitrov’s “Motion to Extend Time for Alternative Service Upon Defendant Rudy Chacon” (Doc. 31) is GRANTED.

16 IT IS FINALLY ORDERED that to serve Defendant Rudy Chacon under Arizona Rule of Civil Procedure 4.2(c), Plaintiff Valentino Dimitrov shall mail to the last-known || California address of Defendant Rudy Chacon the Summons, Complaint, and this Order || via any form of postage-prepaid mail that requires a signed and returned receipt. Plaintiff || shall effectuate service and file an affidavit of service with the Court no later than □□ November 6, 2023.

22 Dated this 12th day of October, 2023.

23 5 fe □□ 24 norable' Diang/4. Hunfetewa 5 United States District Judge -4-