1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 MMSP, LLC, et al., 4 Plaintiffs, Case No.: 2:22-cv-01218-GMN-MDC 5 vs. ORDER DENYING 6 MINTA MAE STOVALL, et al., MOTION TO DISMISS 7 Defendants. 8 9 Pending before the Court is the Motion to Dismiss, (ECF No. 143), filed by Defendant 10 Susanna Pettis. Plaintiffs MMSP, LLC and Gerald Alderson filed a Response, (ECF No. 146), 11 to which Pettis replied, (ECF No. 148). For the reasons discussed below, the Court DENIES 12 Pettis’s Motion to Dismiss. 13 I. BACKGROUND 14 On July 29, 2022, MMSP filed its original Complaint alleging claims for breach of 15 contract and account stated against Stovall. (Compl., ECF No. 1). The Court granted MMSP’s 16 Motion for Leave to Amend the Pleading, Add Parties, and File a First Amended Complaint. 17 On May 16, 2024, MMSP and newly named Plaintiff Gerald Alderson, filed their First 18 Amended Complaint (“FAC”) asserting claims for breach of contract and account stated against 19 Stovall, conversion against Stovall and newly named Defendant Pettis (Stovall’s daughter), and 20 equitable indemnity against Pettis. (FAC, ECF No. 109). On October 8, 2024, Plaintiffs filed a 21 Proof of Service of the Summons and FAC for Pettis (“Proof of Service”). (See Proof of 22 Service, Ex. D to Resp., ECF No. 146-1). The Affidavit of Due Diligence attached to the Proof 23 of Service states that six unsuccessful attempts to serve Pettis were made from July 10, 2024, to 24 July 16, 2024, at the following address: 91 Woodland Ave., San Francisco, California 94117 25 (“Woodland Ave. address”). (See generally Aff. Due Diligence, Ex. 1-D to Resp., ECF No. 1 146-1). The Proof of Service also states that “substituted service” was effectuated on Pettis on 2 October 2, 2024, when copies of the Summons and FAC were left with a “John Doe” at the 3 Woodland Ave. address and subsequently mailed to the same address. (Id.). Pursuant to the 4 Proof of Service, Plaintiffs claim that the Woodland Ave. address is Pettis’s “dwelling house, 5 usual place of abode, or usual place of business.” (Proof of Service at 1, Ex. 1-D to Resp.). 6 Pettis now moves to dismiss the FAC arguing that Plaintiffs failed to serve her, and if they did 7 serve her, it was untimely. 8 II. LEGAL STANDARD 9 A federal court does not have jurisdiction over a defendant unless the defendant has been 10 served properly under Federal Rule of Civil Procedure 4. See Direct Mail Specialists, Inc. v. 11 Eclat Computerized Tech., Inc.,

(9th Cir. 1988). Rule 12(b)(5) authorizes a 12 defendant to move for dismissal due to insufficient service of process. See Fed. R. Civ. P. 13 12(b)(5). The plaintiff has the burden of demonstrating that service of process was valid. See 14 R. Griggs Grp. Ltd. v. Filanto Spa,

(D. Nev. 1996). If service of 15 process is insufficient, the court has discretion to dismiss an action or to simply quash service. 16 See Fed. R. Civ. P. 4(m); SHJ v. Issaquah School Dist. No. 411,

, 1293 (9th Cir. 17 2006); Filanto Spa,

. Actual notice of a lawsuit will not subject a 18 defendant to personal jurisdiction “if service was not made in substantial compliance with Rule 19 4.” Crowley v. Bannister,

(9th Cir. 2013) (quotation omitted).

20 III. DISCUSSION 21 Pettis seeks dismissal on the following grounds: (1) Plaintiffs have failed to effectuate 22 proper service of the Summons and FAC on Pettis as required by Rule 4(e), therefore Plaintiffs’ 23 sole claim for Equitable Indemnity against Pettis must be dismissed pursuant to Rule 12(b)(5); 24 and (2) Plaintiffs have failed to timely serve Pettis within 90 days of the filing of the FAC as 25 1 required by Rule 4(m). (Mot. to Dismiss 4:14–18). The Court will first address the allegations 2 of ineffective service of process. 3 A. Service of Process 4 Pettis argues that she was improperly served. FRCP 4(e) provides the methods by which 5 proper service on a party may be effectuated. Fed. R. Civ. P. 4(e). It provides that an individual 6 may be served by “leaving a copy of [the summons and complaint] at [an] individual’s dwelling 7 or usual place of abode with someone of suitable age and discretion who resides there.” Fed. R. 8 Civ. P. 4(e)(2)(B). In addition, an individual may be served pursuant to Nevada state law or 9 California state law. Fed. R. Civ. P. 4(e)(1) (stating an individual may be served “following 10 state law for serving a summons in an action brought in courts of general jurisdiction in the 11 state where the district court is located or where service is made”). Nevada Rules of Civil 12 Procedure provide that service on an individual may be made “by leaving a copy of the 13 summons and complaint at the individual’s dwelling or usual place of abode with a person of 14 suitable age and discretion who currently resides therein and is not an adverse party to the 15 individual being served.” Nev. R. Civ. P. 4.2(a)(2). California Code of Civil Procedure 16 provides, as relevant here, that “a summons may be served by leaving a copy of the summons 17 and complaint at the person’s dwelling house, usual place of abode. . . or usual mailing address 18 other than a United States Postal Service post office box, in the presence of a competent 19 member of the household or a person apparently in charge of his or her office, place of

20 business, or usual mailing address other than a United States Postal Service post office box. . . 21 .”

(b). 22 Whether a particular residence counts as a party’s place of usual abode is ‘highly fact- 23 specific.” See, e.g., craigslist, Inc. v. Hubert,

(N.D. Cal. 2011) (collecting 24 cases). It is clear, however, that a person may “have more than one dwelling house or usual 25 place of abode for purposes of [Rule 4(e)].” Stars’ Desert Inn Hotel & Country Club, Inc. v. 1 Hwang,

(9th Cir. 1997) (citing Nat’l Dev. Co. v. Triad Holding Corp., 930

(2d Cir. 1991)). Furthermore, an individual who has repeatedly represented to 3 either the plaintiff or to outside parties that one residence is her place of usual abode may be 4 estopped from later contesting that said residence was the proper location for service of 5 process. See craigslist, Inc.,

(citing Jaffe and Asher v. Van Brunt,

(S.D.N.Y. 1994)). 7 Here, Pettis testifies that she was not served by substitute service because she does not 8 reside at the Woodland Ave. address, nor has she lived there for at least two years. (Pettis Decl. 9 ¶ 3, Ex. 1 to Mot. Dismiss, ECF No. 143-1). But Plaintiffs put forth evidence to establish that 10 Pettis’s usual place of abode, or at least one of her places of abode, at time of service was the 11 Woodland Ave. address. Plaintiffs’ counsel Hillary Lehman testifies that a public records 12 search reveals that as of September 30, 2024, the Woodland Ave. address is the last known 13 address for Pettis. (Lehmann Decl. ¶ 6, Ex. 1 to Resp., ECF No. 146-1); (see Public Record 14 Results, Ex. 1-E to Resp., ECF No. 146-1). Lehman also testifies that the public records search 15 showed that Pettis’s bank account records indicate that Pettis used the Woodland Ave. address 16 as recently as June 2024, and that credit reporting agencies reported this address for Pettis 17 through September 1, 2024. (Lehmann Decl. ¶ 6, Ex. 1 to Resp.); (see Public Record Results, 18 Ex. 2-E to Resp.). In addition, Alderson testifies that Pettis uses the Woodland Ave. address to 19 receive mail and other deliveries. (Alderson Decl. ¶ 5, Ex. 2 to Resp.). He further states that he

20 physically delivered items to Pettis at the Woodland Ave. address. (Id.). He also testifies that at 21 Pettis’s direction, he has mailed correspondence to Pettis at the Woodland Ave. address and 22 attended in person meetings with Pettis at the address. (Id.). Based on the foregoing evidence 23 and notwithstanding the timeliness argument addressed below, the Court finds that Pettis was 24 served through substitute service at one of her usual places or abode or at a usual mailing 25 address because her financial records are associated with the Woodland Ave. address and she 1 received mail at the address. craigslist, Inc.,

(“The receipt of mail at a given 2 address. . . and the use of an address on financial records have all been found to provide indicia 3 of permanence in determining whether an address constitutes a place of usual abode.”). 4 Accordingly, Plaintiffs have complied with Rule 4 (permitting subservice at usual place of 5 abode), Nevada Rule of Civil Procedure 4.2(a)(2) (permitting subservice at usual place of 6 abode), and California Code of Civil Procedure 415.20(b) (permitting subservice at usual place 7 of abode or usual mailing address and requiring subsequent mailing). 8 B. Timing of Service 9 Next Pettis argues that the FAC must be dismissed because Plaintiffs failed to effectuate 10 timely service. FRCP 4(m) provides: “If a defendant is not served within 90 days after the 11 complaint is filed, the court—on motion or on its own after notice to the plaintiff—must 12 dismiss the action without prejudice against that defendant or order that service be made within 13 a specified time.” Fed. R. Civ. P. 4(m). “But if the plaintiff shows good cause for the failure, 14 the court must extend the time for service for an appropriate period.”

The FAC was filed on 15 May 16, 2024, meaning that Plaintiffs were required to serve Pettis by August 16, 2024. As 16 discussed above, Plaintiffs served Pettis through substitute service on October 2, 2024. Thus, 17 service was untimely. 18 Because service was untimely the Court must determine whether Plaintiffs have shown 19 good cause to allow the late service to be permissible. “The provisions of Rule 4 should be

20 given a liberal and flexible construction.” Borzeka v. Heckler,

(9th Cir. 21 1984). Where service of process is insufficient, courts have broad discretion to dismiss the 22 action or to retain the case but quash the service that has been made on defendant. S.J. v. 23 Issaquah Sch. Dist. No. 411,

, 1293 (9th Cir. 2006). Courts need not dismiss for 24 failure to serve process if “(a) the party that had to be served personally received actual notice, 25 (b) the defendant would suffer no prejudice from the defect in service, (c) there is a justifiable 1 excuse for the failure to serve properly, and (d) the plaintiff would be severely prejudiced if his 2 complaint were dismissed.” Borzeka,

. Rule 4 provides that “if the plaintiff 3 shows good cause for the failure, the court must extend the time for service for an appropriate 4 period.” Fed. R. Civ. P. 4(m). 5 First, Pettis clearly received notice of the lawsuit because she is represented by counsel 6 in this matter, her counsel has entered an appearance on the docket, she is actively defending 7 the lawsuit, and has asserted counterclaims. Second, Pettis argues that she would be prejudiced 8 because she would only have three months to complete discovery. (Reply 8:17–20, ECF No. 9 148). This argument is moot because the discovery cut-off was extended giving Pettis an 10 additional six months to complete discovery. (See Discovery Order, ECF No. 177). The Court 11 therefore finds that Pettis suffers no prejudice from the defect in service. Third, Plaintiffs 12 provide a justifiable excuse for why they failed to timely serve Pettis. During the 90 days 13 following the filing of the FAC, Plaintiffs attempted to personally serve Pettis ten times 14 between the two locations that Plaintiffs believed she resides and began such effort 15 days 15 after the FAC was filed. (Lehmann Decl. ¶¶ 2–3, Ex. 1 to Resp.). Additionally, on July 30, 16 2024, Plaintiffs left a copy of the summons and FAC with a Notice and Acknowledgment of 17 Receipt of Summons at the Woodland Ave. address, where the process server reported that 18 someone whom they believed to be Pettis opened the door and informed the process server that 19 Pettis was out of town. (Id. ¶ 4); (Aff. of Due Diligence, Ex. 1-D to Resp.). All of these

20 attempts indicate to the Court that Plaintiffs made a good faith effort to serve Pettis and had a 21 justifiable excuse for why service could not be effectuated timely. And lastly, Plaintiffs fail to 22 explain in any detail why they would be severely prejudiced if the FAC was dismissed. 23 Thus, the Court finds that dismissal for failure to properly serve process is not justified. 24 Moreover, because three of the four Borzeka factors weigh in favor of finding that there is good 25 cause, the Court allows the untimely service to be permissible. Because Plaintiffs effectuated 1 || substituted service on Pettis, albeit untimely, the Court nunc pro tunc grants Plaintiffs the 2 || additional time it took for them to effectuate service. The Court will not order Plaintiffs to re- 3 || serve Pettis. Pettis’s Motion to Dismiss is DENIED and she remains a named Defendant in this 4 || case. CONCLUSION 6 IT IS HEREBY ORDERED that Pettis’s Motion to Dismiss, (ECF No. 143), is 7 || DENIED. 8 DATED this 9 _ day of September, 2025. i, Gl . Gloria M. Hafarro, District Judge United States’ District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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