United States District Court, W.D. Washington, Seattle
ORDER REGARDING SERVICE BY MAIL
S. Lasnik, United States District Judge.
matter comes before the Court on plaintiff's
“Motion to Permit Alternative Mail Service or for
Additional Time to Attempt Process Service.” Dkt. # 27.
Plaintiff has not served two of the named defendants, and the
90 day deadline for service expired on September 7, 2017.
Plaintiff filed this motion seeking leave to serve Anita
Torres and Andrei Saar by mail or, in the alternative, for an
extension of time in which to serve.
Service by Mail
Rule of Procedure 4(e)(1) allows plaintiff to effect service
“pursuant to the law of the state in which the district
is located.” Washington law authorizes service by mail
upon a showing that (a) defendant has made reasonably
diligent efforts at personal service (Rodriguez v.
James-Jackson, 127 Wn.App. 139, 140 (2005)), and (b)
defendant resides in the state but has concealed herself in
order to avoid service of process (RCW 4.28.100(4)).
Plaintiff has made multiple unsuccessful attempts to
personally serve defendants Torres and Saar. Lack of success
in personal service does not necessarily justify service by
mail, however. The facts regarding Torres and Saar vary and
must be considered separately.
regards to Saar, there is evidence that the named defendant
resides at, or is associated with, the address used by the
process server. The third-party server reported that the call
box at the address goes to Saar's voicemail and that a
neighbor confirmed that defendant lived at the address. The
server reported that someone was inside the residence but
refused to answer the door. In addition, the server left a
message to which Saar apparently declined to respond. All of
the prerequisites for allowing service by mail are therefore
satisfied as to defendant Saar, and there is reason to
believe that service by mail will effectively notify
defendant of the claims against him.
regards to defendant Torres, however, there is no indication
that the address used by the process server is, in fact,
connected to defendant. In its motion, plaintiff states that
the address has been confirmed by the ISP “and/or
investigative databases, ” citing counsel's
declaration as support. Dkt. # 19 at 2. The declaration is
silent regarding what information was provided by the ISP and
what investigation was done to confirm that the defendant
could be found at the specified address. Nor is there
anything in the process server's notes that ties Torres
to the address used: there are apparently no names on the
residence and no neighbors or inhabitants confirmed
Torres' residence. Although vehicle license plate numbers
are recorded, there is no evidence that they are linked to
the named defendant. Even if the Court assumes that the ISP
provided the address listed on the summons, the information
was provided in relation to internet usage in May 2017, four
months ago. Absent some evidence from which one could
reasonably conclude that the defendant currently resides at,
or is associated with, the address used by the process
server,  the Court cannot conclude that
plaintiff's efforts were reasonable or that Torres is
concealing herself. Nor will the Court assume that service by
mail will effectively notify Torres of this lawsuit. The
motion for leave to serve by mail is therefore DENIED.
Extension of Service Deadline
be challenging to meet the 90 day service deadline in
BitTorrent cases where plaintiff must first conduct discovery
from the ISP before it can identify, name, and serve the
defendant. It can be done, however, and the Court has
repeatedly indicated that it expects at least a good faith
effort to comply with the service deadline. In this case, the
motion for leave to conduct expedited discovery was granted
in a timely manner, and plaintiff has not indicated that
there was any delay in the ISP's response. As the Court
has previously noted, in these circumstances, an extension of
time should be necessary only if a defendant failed to waive
or was dodging service.
asserts that Torres “elected not to return the request
for waiver” of service under Fed.R.Civ.P. 4(d). Dkt. #
27 at 1. There is no evidence that a waiver was ever sent,
however, much less that it was sent in a timely manner. The
only evidence of attempted service in the record shows that
plaintiff engaged a process server thirteen days before the
deadline for service. Plaintiff has not shown good cause for
an extension of time.
of the foregoing reasons, plaintiff's request for
permission to serve defendant Saar by mail is GRANTED. The
request to serve defendant Torres by mail and the alternative
request for an extension of the service deadline are DENIED.
The claims against Anita Torres are hereby DISMISSED.
 In another case filed by plaintiff, at
least three of the named defendants had moved and were no
longer found at the address provided by the ISP by the time