Cabrera v. Felix Tire and Auto LLC

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Maxy Edgar Rodriguez Cabrera, No. CV-25-00339-PHX-MTL 10 Plaintiff, ORDER v. Felix Tire and Auto LLC, et al., 13 Defendants.

15 Before the Court is Plaintiff’s Motion for Alternative Service and for Extension of Time to Serve. (Doc. 7.) The Court will grant the motion.

17 I.

18 On January 31, 2025, Plaintiff initiated this lawsuit, alleging violations of the Fair Labor Standards Act and state law against his employers Defendants Felix Tire and Auto LLC (“Felix Auto”), Felix Tire and Brakes LLC (“Felix Brakes”), Luis E. Felix Solano, and Josefina A. Felix Corona. (Doc. 1.) A process server attempted to serve Defendants at Luis and Josefina’s residential address on February 11, 2025, in the afternoon. (Doc. 7 at 2.) Although many vehicles were present at the house and the interior lights were on, the attempt was unsuccessful. (Id.; 7-1.) The process server made another attempt to serve Defendants at Louis and Josefina’s home on February 14 in the morning and February 15 in the afternoon, to no avail. (Doc. 7 at 2.) Later on February 15, 2025, however, the process server successfully served Luis and Felix Brakes at Defendants’ business address, despite Louis initially using a false name to evade service. (Id. at 3; Docs. 5, 6.)

1 Over one month later, the process server attempted service on Josefina and Felix Auto at the same business address, but the attempt was not successful because the business appeared to be closed. (Doc. 7 at 3.) That same day—merely three hours later—the process server again unsuccessfully attempted service at Defendants’ business address and was informed that Josefina, the sole member of Felix Auto, was in Mexico. (Id.) 6 This motion followed. Because Louis and Felix Brakes were served on February 15, 2025 (Docs. 5, 6), Plaintiff’s motion only seeks alternative service for Josefina and Felix Auto (Doc. 7).

9 II.

10 Federal Rules of Civil Procedure 4(e)(1) provides that individuals may be served 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 . . . .” Arizona law enumerates various sufficient methods to serve individuals and unincorporated associations, including by: 15 (1) delivering a copy of the summons and the pleading being served to that individual personally; (2) leaving a copy of each 16 at that individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or 17 (3) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

19 Ariz. R. Civ. P. 4.1(d), (i). If a moving party shows service by those means is “impracticable,” the Court may “order that service [] be accomplished in another manner.”

21 Id. 4.1(k)(1).

22 “There are no Arizona cases interpreting the meaning of ‘impracticable’ as that term is used in [Rule 4.1(k)].” Blair v. Burgener, 226 Ariz. 213, 218 (App. 2010) (formerly Rule 4.1(m)). In Blair, the Arizona Court of Appeals determined the standard of impracticability requires something less than the “due diligence.” Id. at 218-19 (“[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.”). The court deemed personal service to be impracticable in Blair because the plaintiff attempted service at the defendants’ place of business and residence at various times on five different days and visited the defendants’ place of business on seven additional days but the defendants were not present. Id. at 219.

4 In addition, the Blair court “approvingly cited the language from a New York case on a similar service issue,” in which “the New York court concluded that three attempts at service on three different days constituted sufficient efforts to warrant alternative means of service.” BMO Harris Bank, N.A. v. D.R.C. Invests., L.L.C., No. CV-13-1692-PHX-LOA, 2013 WL 4804482, at *4 (D. Ariz. Sept. 9, 2013) (citing Blair, 226 Ariz. at 218).

9 III.

10 In this case, Plaintiff has made the requisite showing to justify alternative service.

11 The process server attempted to effectuate service at Louis and Josefina’s residential address on three occasions across four days, without success. (Doc. 7 at 2-3; 7-1.) And on those occasions, the lights inside were turned on, and certain vehicles were present that the process server also observed at Defendants’ business address. (Doc. 7-1.) Further, the process server attempted service at Defendants’ business address three times on two different days. (Id.) In total, Plaintiff has attempted to serve Josefina and Felix Auto six times on four different days, over the course of approximately 1.5 months. (Id.) Therefore, the Court finds the “impracticable” requirement of Rule 4.1(k) to be satisfied. BMO Harris Bank, 2013 WL 4804482, at *4 (explaining that three service attempts on three different days may be sufficient to warrant alternative service).

21 Because alternative service of process is appropriate, the Court must determine whether Plaintiff’s proposed method of alternative service comports with “constitutional notions of due process.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). Plaintiff proposes serving Defendants Josefina and Felix Auto via U.S. mail and certified mail. (Doc. 7 at 7.) Under Rule 4.1(k)(2), if alternative service is allowed, “the serving party must mail the summons, the pleading being served, and any court order authorizing an alternative means of service to the last-known business or residential address of the person being served.” Ariz. R. Civ. P. 4.1(k)(2).

1 Plaintiff is aware of Josefina’s last-known residential address and Felix Auto’s 2|| business address. Indeed, Plaintiff represents that a process server successfully served || Louis and Felix Brakes at this same business address, and the process server observed the same Chevy Silverado Pickup as being present at Defendants’ residential and business || address. (Doc. 7-1.) Josefina’s husband, Louis, has been served, and he informed the || process server on February 15, 2025, that he was aware of the lawsuit. (/d. at 3.) The Court 7|| therefore determines there is a strong indication that service by first-class mail would || apprise Defendants Josefina and Felix Auto of the pendency of this action and afford them || the opportunity to present their objections. Rio Props., Inc., 284 F.3d at 1016.

10 IV. |} Accordingly, 12 IT IS ORDERED that Plaintiff's Motion for Alternative Service and Extension for || Time to Serve (Doc. 7) is granted. Plaintiff may serve the Summons, Complaint, and a 14]| copy of this Order on Defendants Felix Tire and Auto LLC and Josefina A. Felix Corona via first-class U.S. mail and Certified Mail to Defendants at 7601 E. Inverness Ave., Mesa, 16|| AZ 85209 and 35 S. Ellsworth Rd., Mesa, AZ 85209.

17 IT IS FURTHER ORDERED that Plaintiff may have through and including May || 31, 2025, within which to serve process on all Defendants.

19 IT IS FINALLY ORDERED that Plaintiff's counsel shall file an affidavit within 20|| five (5) days of the completion of service specifying the date and details on which alternative service has been accomplished.

22 Dated this 18th day of April, 2025.

Miche T. bundle 2 Michael T. Liburdi 26 United States District Judge -4-