TAMAKI v. TAMAKI

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STEPHANIE TAMAKI,
Plaintiff,
v.
ATSUSHI TAMAKI,
Defendant
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2:23-cv-00312-LEW
ORDER ON MOTION FOR SERVICE
BY ALTERNATE MEANS
Plaintiff asks the Court to authorize service upon Defendant by alternate means.
(Motion, ECF No. 5.) After review of Plaintiff’s motion and the record, the Court grants
Plaintiff’s motion.
DISCUSSION
Under Federal Rule of Civil Procedure 4(e), service may be accomplished by
delivering a copy of the summons and the complaint to the individual personally, leaving
a copy at the individual’s dwelling or usual place of abode with someone of suitable age
and discretion who resides there, delivering a copy to an agent authorized by appointment
or by law to receive service of process, or by following state law for serving a summons in
an action brought in courts of general jurisdiction where the district is located or where
service is made. Fed. R. Civ. P. 4(e). In addition to the traditional method of personal
service, Maine law provides for alternate means of serving a summons and complaint,
“upon a showing that service cannot with due diligence be made by another prescribed
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method.” Me. R. Civ. P. 4(g)(1). The Advisory Committee Note that accompanied the
2010 Amendment states in part: “Before a party can obtain an order allowing service by
any alternate means, that party must first demonstrate that he or she has exhausted all
reasonable attempts to make service in one of the other ways prescribed by Rule 4 (or by
applicable statute) that are designed to provide actual notice of the action to the party to be
served.” M.R. Civ. P. 4 Advisory Committee Note, 2010 Amendment.
Alternate means of service include leaving the summons, complaint, and the order
authorizing service by alternate means at the individual’s dwelling house or usual place of
abode, by publication unless a statute provides another method of notice, or by electronic
or any other means not prohibited by law. Id. A motion for service by alternative means
must be supported by an affidavit demonstrating that:
(A) The moving party has demonstrated due diligence in attempting to obtain
personal service of process in a manner otherwise prescribed by Rule 4 or by
applicable statute;
(B) The identity and/or physical location of the person to be served cannot
reasonably be ascertained, or is ascertainable but it appears the person is
evading process; and
(C) The requested method and manner of service is reasonably calculated to
provide actual notice of the pendency of the action to the party to be served
and is the most practical manner of effecting notice of the suit.
Me. R. Civ. P. 4(g)(1).
Here, Plaintiff has made multiple efforts to serve Defendant in hand with the
complaint and summons through a local sheriff, but Defendant has either refused to receive
the documents or has failed to respond to attempts to contact him at his home. The record
establishes that (a) Defendant resides and works in Cumberland County, (b) Defendant has
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avoided service, (c) Plaintiff has demonstrated due diligence in her efforts to serve
Defendant, and (d) service by alternate means would provide Defendant with the necessary
notice of Plaintiff’s cause of action.
The Court, therefore, will authorize Plaintiff to serve Defendant (1) by leaving a
copy of the complaint, summons and order for service at Defendant’s home address of 133
Rivers Edge in Portland, Maine and at Defendant’s business address of 390 Commercial
Street in Portland, Maine, and (2) by mailing a copy of the complaint, summons and order
for service to Defendant at said addresses.
CONCLUSION
Based on the foregoing analysis, the Court grants Plaintiff’s motion for alternate
service. Plaintiff may serve Defendant (1) by leaving a copy of the complaint, summons
and order for service (in accordance with Maine Rule of Civil Procedure 4(g)(2)) at
Defendant’s home address of 133 Rivers Edge in Portland, Maine and at Defendant’s
business address of 390 Commercial Street in Portland, Maine, and, and (2) by mailing a
copy of the complaint, summons and order for service to Defendant at said addresses.
NOTICE
Any objections to this Order shall be filed in accordance with Federal Rule of Civil
Procedure 72.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 13th day of October, 2023.
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