DOUGLAS et al v. LALUMIERE et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JOEL DOUGLAS, et al., )
)
Plaintiffs )
)
v. ) 2:20-cv-00227-JDL
)
SCOTT LALUMIERE, et al., )
)
Defendants )
ORDER ON PLAINTIFFS’ MOTION
FOR SERVICE BY PUBLICATION
Plaintiffs seeks leave to serve Defendant Russell Oakes with the complaint and
summons by publication. (Motion, ECF No. 171.) After review of the motion and the
record, the Court denies the motion without prejudice.
FACTUAL BACKGROUND
Plaintiffs assert they have made the following attempts to serve Defendant Oakes:
1. Plaintiffs conducted several internet searches to locate Defendant Oakes’
residence. The search revealed a post office box in Freeport, Maine. The search
also revealed other known past addresses for Defendant Oakes.
2. Plaintiffs contacted the Cumberland County Sheriff’s office to conduct an
inquiry as to Defendant Oakes’ address and telephone number. Plaintiffs asked
the Cumberland County Sheriff’s office to serve Defendant Oakes.
3. Plaintiffs paid a fee to the Cumberland County Sheriff’s office to locate the
address associated with the post office box.
4. Plaintiffs identified Defendant Oakes’ employer and attempted to contact him
through his employment but were unsuccessful.
Case 2:20-cv-00227-LEW Document 210 Filed 04/02/21 Page 1 of 5 PageID #:
<pageID>

2
5. The Cumberland County Sheriff’s office attempted without success to serve
Defendant Oakes at three separate addresses. The deputy who attempted service
left contact information for Defendant Oakes, and several voicemail messages
on phone numbers associated with Defendant Oakes’ place of business.
Defendant Oakes did not contact the deputy.
DISCUSSION
Pursuant to 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). A party may also complete service through notice
and waiver by the defendant in accordance with Federal Rule of Civil Procedure 4(d). 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 method.” Me. R. Civ. P. 4(g)(1).
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 alternate means
must be supported by an affidavit demonstrating that:
Case 2:20-cv-00227-LEW Document 210 Filed 04/02/21 Page 2 of 5 PageID #:
<pageID>

3
(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).
“Both the United States and Maine Constitutions require that, as a basic element of
due process, any defendant against whom suit is commenced is entitled to notice
reasonably calculated to give actual notice, and a reasonable opportunity to respond to the
action.” Gaeth v. Deacon, 2009 ME 9, ¶ 23, 964 A.2d 621, 627. Although the Maine
Rules of Civil Procedure continue to authorize service by publication in some
circumstances, this method of providing notice “developed at a time when newspapers
were the only means of print mass communication, and when newspapers were more
widely and intensely read than is now the case.” Id., 2009 ME 9, ¶ 25, 964 A.2d at 627.
For this reason, the Maine Supreme Judicial Court has described service by publication as
a “last resort”:
Because service by publication has become less likely to achieve actual
notice of a lawsuit, it is also less likely to meet the requirements of due
process. See Grannis [v. Ordean], 234 U.S. [385] at 394, 34 S. Ct. 779
[(1914)]. Today, just as one hundred years ago, notice of a suit must be given
in the manner “most reasonably calculated to apprise the defendant” of the
pendency of a suit. Lewien [v. Cohen], 432 A.2d [800] at 804–05 [(Me.
1981)]. Accordingly, because of the recent societal changes, service by
publication in a newspaper is now a last resort that a party should attempt
only when it has exhausted other means more likely to achieve notice. See 1
Case 2:20-cv-00227-LEW Document 210 Filed 04/02/21 Page 3 of 5 PageID #:
<pageID>

4
Field, McKusick & Wroth, Maine Civil Practice § 4.13 at 98–100 (2d
ed.1970); see also M.R. Civ. P. 4(g)(1) (mandating that courts may order
service by publication only upon motion showing that “service cannot with
due diligence be made by another prescribed method” (emphasis added)).
“When a party’s identity and location are reasonably ascertainable, notice by
publication is not reasonably calculated to provide actual notice of the
pending proceeding.” Phillips [v. Johnson], 2003 ME 127, ¶ 27 n. 12, 834
A.2d at 946 (quotation marks omitted). Thus, “service by publication should
occur only when notice cannot be accomplished by other means.” Id. ¶ 27,
834 A.2d at 946.
Gaeth, 2009 ME 9, ¶ 26, 964 A.2d at 628 (footnote omitted).1
Upon review of the record, the Court is not persuaded that service by publication is
appropriate at this stage of the proceedings. While Plaintiffs have made attempts to serve
Defendant Oakes, Plaintiffs have not established that service could not be made under more
traditional means of service. First, although Plaintiffs assert the sheriff’s office attempted
service at three locations, Plaintiffs provide no information as to why service was attempted
at the addresses or how Defendant Oakes would have received the contact information that
was left at the addresses. In addition, Plaintiffs evidently have a post office box number
for Defendant Oakes, yet Plaintiffs did not attempt to serve him by notice and waiver
pursuant to Federal Rule of Civil Procedure 4(g).2 Furthermore, as Plaintiffs acknowledge,
Defendant Oakes is evidently identified on his employer’s website and thus Plaintiffs know
1 As early as 1950, the United States Supreme Court expressed doubts about the sufficiency of notice by
publication. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950) (“Chance alone brings
to the attention of even a local resident an advertisement in small type inserted in the back pages of a
newspaper, and if he makes his home outside the area of the newspaper’s normal circulation the odds that
the information will never reach him are large indeed.”).
2 Although Plaintiffs might contend that the notice and waiver process might be futile because Plaintiffs
believe Defendant Oakes is avoiding service, the potential consequences of not waiving service might
prompt Defendant Oakes to sign the waiver.
Case 2:20-cv-00227-LEW Document 210 Filed 04/02/21 Page 4 of 5 PageID #:
<pageID>

5
where he works. Plaintiffs, however, have not established that service could not be made
as the result of information that could reasonably be obtained through Defendant Oakes’
employer. The effort to serve Defendant Oakes at work or through information obtained
from his employer is limited to three phone calls, with messages, by the sheriff’s office to
a work number for Defendant Oakes. The record lacks information regarding efforts to
contact anyone else at the place of business, or whether the place of business has an email
address or any other means through which contact could be made.
In sum, while the Court understands Plaintiffs’ frustration in their inability to serve
Defendant Oakes to this point, Plaintiffs have not persuaded the Court that service cannot
be made under Rule 4. On this record, therefore, the Court will not authorize service by
publication.
CONCLUSION
Based on the foregoing analysis, the Court denies without prejudice Plaintiffs’
motion for service by publication.
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 2nd day of April, 2021.
Case 2:20-cv-00227-LEW Document 210 Filed 04/02/21 Page 5 of 5 PageID #:
<pageID>