United States District Court, D. Oregon, Portland Division
J. FRANK SCHMIDT & SON CO., Plaintiff,
WALNUT CREEK NURSERY, INC. and PAUL HACKETT, Defendants.
L. Steinberg Jordan Ramis PC Attorney for Plaintiff
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
J. Frank Schmidt & Son Co. brings this action against
Defendants Walnut Creek Nursery, Inc. and Paul Hackett,
alleging breach of contract, goods sold and delivered, unjust
enrichment, and breach of guaranty. Before the Court is
Plaintiff's motion for leave to serve Defendant Hackett
by alternative methods . For the reasons that follow, the
motion is denied with leave to renew.
alleges it began selling plants, trees, and shrubbery to
Defendant Walnut Creek in 2014. Compl. ¶ 6. In 2018,
Walnut Creek became delinquent in its payments, and Plaintiff
refused to deliver further goods. Id. ¶ 8. In
August of 2018, the parties executed a new promissory note in
which Walnut Creek promised to pay Plaintiff $128, 972.96,
and Defendant Hackett, the president and owner of Walnut
Creek, guaranteed Walnut Creek's performance.
Id. ¶ 9.
the note was executed, Defendant Walnut Creek failed to
perform on its promised obligations, and Defendant Hackett
failed to pay the outstanding amounts as guaranteed.
Id. ¶ 11, 21. Plaintiff now alleges that, after
applying all credits, payments, and offsets, Walnut Creek
owes Plaintiff $80, 825.49. Id. ¶ 12.
served Defendant Walnut Creek on July 2, 2019. ECF 4. After
an unsuccessful attempt to serve Defendant Hackett at home,
Plaintiff now asks the Court for leave to serve Mr. Hackett
by email, first class mail, and certified mail with a return
Rule of Civil Procedure 4(e)(1) allows a party to serve an
individual “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
or where service is made[.]” Fed.R.Civ.P. 4(e)(1). In
Oregon, individuals may be served in the following ways: (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 copies of the summons and
complaint to the individual by first-class mail and
certified, registered, or express mail, provided the
defendant signs a receipt for the certified, registered, or
express mail. Or. R. Civ. P. 7D(3)(a)(i). Additionally, when
a party demonstrates “by affidavit or declaration that
service cannot be made” by one of these specified
methods, the Court, “at its discretion, may order
service by any method or combination of methods that under
the circumstances is most reasonably calculated to apprise
the defendant of the existence and pendency of the
action[.]” Or. R. Civ. P. 7D(6)(a).
support of this motion, Plaintiff's attorney submitted a
declaration that includes: (1) documentation of a single
recorded attempt by a process server to serve Mr. Hackett at
his last known address, (2) confirmation that the post office
continues to deliver Mr. Hackett's mail to this address;
(3) an email from Mr. Hackett, sent from his company email
address; and (4) a letter from an attorney briefly hired to
represent Defendants in this matter. However, Plaintiff
offers no evidence that it has attempted to serve Mr. Hackett
by office service or by mail with a return receipt requested.
See Great Am. Ins. Co. v. Brillhard, No.
08-cv-963-BR, 2009 WL 440203, at *3 (D. Or. Feb. 20, 2009)
(denying the plaintiff's motion for service by
publication where it did not attempt to serve the defendant
by certified, registered, or express mail); Amica Mut.
Ins. Co. v. Martinez, 3:19-cv-00463-SB, 2019 WL 5063827
(D. Or. Oct. 9, 2019) (same). The Court also has concerns as
to whether a single attempt to serve Mr. Hackett at his last
known address, with no evidence that Mr. Hackett is evading
service, is sufficient to demonstrate that substitute service
cannot be made in this case.
Court therefore finds that Plaintiff has failed to
demonstrate that service on Mr. Hackett “cannot be
made” by one of the specified methods. While Plaintiff
may renew the motion after curing the noted deficiencies, the
motion must be denied at this time.
motion for leave to serve by alternative methods  is