AMERISOURCEBERGEN DRUG CORPORATION v. T & G LLC et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
AMERISOURCEBERGEN 	)
DRUG CORPORATION, 	)
)
Plaintiff 	)
)
v. 	) 	No. 1:24-cv-00323-LEW
)
T&G LLC d/b/a 	)
I CARE PHARMACY, 	)
and TERRY L. GREENIER 	)
)
Defendant 	)
ORDER ON MOTION FOR ALTERNATIVE SERVICE
Before me is the plaintiff AmerisourceBergen Drug Corporation’s motion for
an order authorizing it to serve process on the defendant Terry L. Greenier by
alternative means; specifically, by certified mail and by email. 	See Motion for
Alternative Service (ECF No. 7) at 1. For the following reasons, the motion is granted.
I. LEGAL STANDARD
“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, [or] delivering a copy to an agent
authorized by appointment or by law to receive service of process.” Wells Fargo Bank,
N.A. 	v. 	Dodge, 	No. 	2:22-cv-00412-LEW, 	2024 	WL 	1309377, 	at 	*1
(D. 	Me. 	Mar. 	27, 	2024) 	(quoting 	Edson 	v. 	Riverside 	Psychiatric 	Ctr.,
No. 	1:16-cv-00079-JAW, 	2016 	WL 	3257003, 	at 	*2 	(D. 	Me. 	June 	13, 	2016))
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(citing Fed. R. Civ. P. 4(e)(2)). “Service may also be accomplished ‘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.’” Id.
(quoting Edson, 2016 WL 3257003, at *2) (citing Fed. R. Civ. P. 4(e)(1)).
Maine law permits service by alternate means “on motion upon a showing that
service 	cannot 	with 	due 	diligence 	be 	made 	by 	another 	prescribed 	method.”
Me. R. Civ. P. 4(g)(1). 	To satisfy that standard, the movant must submit “a draft,
proposed order to provide the requested service by alternative means,” containing the
content specified in Rule 4(g)(2), as well as an affidavit showing that (1) the movant
“has demonstrated due diligence in attempting to obtain personal service of process
in a manner otherwise prescribed by Rule 4 or by applicable statute,” (2) “[t]he
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
that (3) “[t]he 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)-(2).
Maine allows alternate service to be made “by leaving a copy of the order
authorizing 	service 	by 	alternate 	means, 	the 	summons, 	complaint, 	and 	notice
regarding Electronic Service at the defendant's dwelling house or usual place of
abode,” “by publication unless a statute provides another method of notice,” or
“electronically or by any other means not prohibited by law.” Me. R. Civ. P. 4(g)(1).
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II. BACKGROUND
The present action concerns the recovery of unpaid debts allegedly owed by
Greenier 	and 	the 	defendant 	T&G 	LLC 	to 	AmerisourceBergen 	pursuant 	to 	a
November 2019 credit agreement. See Motion for Alternative Service at 2. Greenier
owns T&G and personally guaranteed its obligations under the credit agreement. Id.
AmerisourceBergen completed service on T&G through its registered agent in
October 2024,1 but has been unable to serve Greenier. 	Id. 	AmerisourceBergen has
made four attempts to personally serve Greenier, through a deputy of the Penobscot
County Sheriff’s Office, by leaving a copy of the complaint and summons at 16 Middle
Street in Orono, his last known address. Id; see also Affidavit of Adam Prescott, Esq.
(ECF No. 7-1) ¶ 4. 	The deputy did not succeed in making contact with Greenier on
these occasions, but she observed that a business card she had left behind on the
second visit was gone by the fourth visit, and there were security cameras on the
property that would have captured her presence. 	See Affidavit of Deputy Sheriff
Patricia McLaughlin (ECF No. 7-2) at 2. The deputy also attempted to reach Greenier
through several phone numbers, none of which worked, and through Facebook
messenger, but chats were temporarily unavailable. Id.
III. DISCUSSION
AmerisourceBergen seeks to alternatively serve Greenier by sending a copy of
the summons and complaint to the email address listed on the credit agreement, and
1 On November 1, 2024, the Court granted AmerisourceBergen’s motion for an entry of default against
T&G as a result of its failure to timely file an answer or otherwise respond to the complaint. See Order
Granting Motion for Entry of Default (ECF No. 9). AmerisourceBergen then filed a motion for default
judgment against T&G, which remains pending. See Motion for Default Judgment (ECF No. 10).
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by certified mail to his last known address. 	See Proposed Order (ECF No. 7-3)
at 1-2; see also Prescott Affidavit ¶¶ 3-4. I find that AmerisourceBergen has shown
that, in light of the efforts already taken, service of Greenier “cannot with due
diligence be made by another prescribed method,” and that the requested methods of
alternative service are both reasonably calculated and the most practical means of
providing Greenier actual notice of this action. See Me. R. Civ. P. 4(g)(1).
Although further steps could arguably have been taken to obtain personal
service, the likelihood that Greenier received actual notice of the summons and
complaint as a result of the steps already taken by AmerisourceBergen justifies
service 	by 	alternative 	means. 	See 	Me. 	R. 	Civ. 	P. 	4(g)(1)(A)-(B); 	see 	also
MATSCO v. Brighton Family Dental, P.C., 597 F. Supp. 2d 158, 163 (D. Me. 2009)
(explaining that the sufficiency of the plaintiff’s attempts to effectuate service
“depends on the factual circumstances of the case”). 	Moreover, because T&G’s
registered agent was served, it is likely that Greenier, T&G’s sole owner, has actual
knowledge of this suit and is avoiding service of process. See Me. R. Civ. P. 4(g)(1)(B).
IV. CONCLUSION
Accordingly, 	AmerisourceBergen’s 	motion 	for 	alternative 	service 	is
GRANTED. 	Within thirty (30) days of the entry of this order, AmerisourceBergen
shall serve Greenier by emailing a copy of the summons and complaint, along with a
copy of this order, to Greenier’s email address, and shall send the same by certified
mail to 16 Middle Street, Orono, ME 04473. AmerisourceBergen shall file an affidavit
demonstrating compliance with this order once service on Greenier is complete.
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NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may
serve and file an objection to this order within fourteen (14) days after being
served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to review by the District Court and to any further appeal of this order.
Dated: November 14, 2024
/s/ Karen Frink Wolf
United States Magistrate Judge
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