United States District Court, D. Oregon
AMICA MUTUAL INSURANCE COMPANY, as subrogee of JOHN SULLIVAN AND SARAH THURSTON SULLIVAN, Plaintiff,
MARIO MARTINEZ, Defendant.
OPINION AND ORDER
F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE.
Amica Mutual Insurance Company (“Amica”), as
subrogee of John Sullivan and Sarah Thurston Sullivan (the
“Sullivans”), filed this action against defendant
Mario Martinez (“Martinez”), alleging negligence
claims. (ECF No. 1.) Pending before the Court is Amica's
renewed motion for service by publication. (ECF No. 8.) For
the following reasons, the Court grants Amica's motion.
alleges that in 2017, the Sullivans hired Martinez, a
contractor, to finish the flooring inside their mountain
cabin located in Welches, Oregon. (Compl. ¶¶ 6-8.)
While stripping the existing finish, Martinez applied a stain
to the flooring that was prone to spontaneous heating and
combustion if improperly handled. (Compl. ¶¶ 9-10.)
Martinez improperly used the stain materials, and as a
result, the Sullivans' cabin caught fire and sustained
substantial fire damage. (Compl. ¶ 11.) The Sullivans
received $367, 922.82 from Amica to repair the cabin. (Compl.
March 29, 2019, Amica filed this action against Martinez,
seeking to recover as the real party in interest the amount
it paid to the Sullivans. (ECF No. 1.) On May 15, 2019, Amica
asked for leave to serve Martinez by publication because
other methods of service had proven futile. (ECF No. 8.) The
Court initially denied the request because Amica had not yet
attempted all possible methods of service. (ECF No. 9.)
Specifically, Amica had not attempted to serve Martinez by
first-class certified, registered, or express mail with
return receipt requested. (ECF No. 9.) The Court extended the
time to perfect service by sixty days. (ECF No. 9.)
before the Court is Amica's Renewed Motion for Leave for
Service by Publication. (ECF No. 15.) Following the
Court's earlier order, Amica sent the Summons, Complaint,
and the Court's June 27, 2019 Order, to Martinez's
four last known addresses via first class certified mail with
return receipt and signature confirmation requested. (ECF No.
15.) According to the return receipts, the letters were not
delivered to Martinez. (ECF No. 15.)
information available to Amica suggests that Martinez lives
in either Multnomah County, Oregon (specifically, Gresham),
or Clark County, Washington. (ECF No. 15.) Amica proposes
service by publication in the Gresham Outlook newspaper,
which is generally circulated in Gresham, and The Columbian
newspaper, which is generally circulated in Clark County,
Washington. (ECF No. 15.)
federal law provides otherwise, an individual . . . may be
served in a judicial district of the United States by: (1)
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 or where service is made. . .
.” Fed.R.Civ.P. 4(e)(1). The Oregon Rules of Civil
Procedure allow individuals to be served by the following
methods: (1) by personal service on the individual or an
authorized agent; (2) by delivering copies of the summons and
the complaint to the home of the individual and leaving it
with a resident who is over fourteen years of age; (3) by
leaving a copy of the complaint and summons at the
individual's office during normal working hours
“with the person who is apparently in charge”; or
(4) by mailing the copy of the summons and complaint to the
individual by first-class certified, registered, or express
mail with return receipt requested. See Or. R. Civ.
P. 7(D)(1). Oregon law also allows for service by publication
if service cannot be accomplished by other methods:
[o]n motion upon a showing by affidavit or declaration that
service cannot be made by any method otherwise specified in
these rules or other rule or statute, the court, at its
discretion, may order service by any method or combination of
methods which under the circumstances is most reasonably
calculated to apprise the defendant of the existence and
pendency of the action, including . . . publication of
Or. R. Civ. P. 7(D)(6)(a). “An order shall direct
publication to be made in a newspaper of general circulation
in the county where the action is commenced, or if there is
no such newspaper, then in a newspaper to be designated as
most likely to give notice to the person to be served.”
Or. R. Civ. P. 7(D)(6)(c).
renews its request for leave to serve Martinez by publication
in the Gresham Outlook and The Columbian newspapers. In
response to the Court's concern that Amica had not yet
exhausted its service attempts, Amica attempted to effect
service by first-class certified mail at Martinez's last
four known addresses, to no avail. Therefore, the Court
concludes that service by publication in the Gresham Outlook
and The Columbian newspapers is appropriate under Or. R. Civ.
P. 7(D). Those newspapers are generally circulated
publications in the counties of Martinez's last known
addresses, and therefore are most likely to provide Martinez
with notice of this action. Amica must follow the service by
publication requirements of the Oregon Rules of Civil
Procedure which require, among other things, publication
“four times in successive calendar weeks.” Or. R.
Civ. P. 7(D)(6)(c).
reasons stated, the Court GRANTS Amica's renewed motion
for leave for ...