Navigators Specialty Insurance Company v. Diaz et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NAVIGATORS SPECIALITY
INSURANCE COMPANY,
Plaintiff,
v. 	Civ. No. 25‐1020 GJF/GBW
HERBERT DIAZ, CYRUS CHARLES JACKSON,
VICTORIA XPRESS, INC., and REALIST LOGISTICS, LLC,
Defendants.
ORDER DENYING PLAINTIFF’S MOTION FOR SERVICE BY PUBLICATION
THIS MATTER comes before the Court on Plaintiff’s Motion for Service by
Publication. Doc. 9. Having reviewed the Motion, the Court will DENY it WITHOUT
PREJUDICE.
I. 	BACKGROUND
This action seeks a declaratory judgment relating to the coverage under an
insurance policy issued by Plaintiff. See doc. 1. The only defendant who has been
successfully served is Defendant Diaz. See docs. 7, 8. In the instant motion, Plaintiff
seeks permission to serve by publication two of the three remaining defendants –
Defendant Jackson and Defendant Victoria Xpress, Inc.
With respect to Defendant Jackson, Plaintiff states it attempted service at one
address on one occasion. The residence of that address indicated no knowledge of Mr.
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Jackson except that Mr. Jackson had not resided there when the resident moved in four
months ago. See doc. 9, Ex. A. Plaintiff provides no other information about efforts to
locate Mr. Jackson nor any evidence about where he might be located.
With respect to Defendant Victoria Xpress, Inc., Plaintiff states that it,
through counsel, previously attempted to locate an agent or attorney for
Victoria Xpress to accept service. This included emails to former and
present counsel for Victoria Xpress. Counsel has been unable to make
contact with Victoria Xpress and has attempted the services of a private
investigator, without success. Undersigned counsel has been advised that
Victoria Xpress is “defunct and the ownership is in the wind.”
Undersigned counsel was also advised that attempts were also made to
contact the listed statutory agent for Victoria Xpress, and those attempts
were unsuccessful. These communications took place from November
2025 to January 2026.
Doc. 9 at 2.
II. 	R ELEVANT LAW
Rule 4 of the Federal Rules of Civil Procedure authorizes service on an individual
or corporation by any method permitted under the law of the state where the district
court is located. Fed. R. Civ. P. 4(e)(1), 4(h)(1)(A). Under New Mexico law, service by
publication may be permitted “[u]pon motion, without notice, and showing by affidavit
that service cannot reasonably be made as provided by this rule[.]” NMRA 1‐004(J); see
also NMRA 1‐004(K). A party must exhaust the entire “hierarchy of mechanisms” under
NMRA 1‐004(F) before service by publication is permitted. Soto v. Vill. of Milan Police
Dep’t, 2010 WL 11619168, at *3 (D.N.M. Sept. 17, 2010) (unpublished). Moreover, since
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service by publication is a method of “last resort,” it is appropriate “if and only if the
names and addresses of the defendants to be served are not reasonably ascertainable.”
T.H. McElvain Oil & Gas Ltd. P’ship v. Grp. I: Benson‐Montin‐Greer Drilling Corp., 388 P.3d
240, 249 (N.M. 2016) (citation omitted). Clearly, “the exercise of diligence and good
faith to locate a defendant [is] implicit [in the] prerequisites to effective service of
process by publication.” Id. at 250 (citations omitted). Finally, the court may only order
service by publication in a way “that is reasonably calculated under all of the
circumstances to apprise the defendant of the existence and pendency of the action and
afford a reasonable opportunity to appear and defend.” NMRA 1‐004(J).
III. 	A NALYSIS
Plaintiff has failed to meet its burden to establish that service by publication is
authorized under the rules above nor that such service would comport with due
process principles. With respect to Defendant Jackson, Plaintiff’s efforts, at least as
catalogued in the motion, are insufficient to demonstrate adequate diligence to locate
Defendant Jackson. Moreover, the record gives the Court no reason to believe that
publication in Albuquerque or Houston is reasonably calculated to apprise Defendant
Jackson of the action. With respect to Defendant Victoria Xpress, Inc., Plaintiff’s efforts
to locate relevant persons appear more significant. However, while the Complaint
states that it “is a foreign for‐profit corporation authorized to do business, and doing
business in the State of New Mexico[,]” it now appears that it is “defunct and the
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ownership is in the wind.” See doc. 1, ¶ 5; doc. 9 at 2. As such, the Court again lacks any
basis on which to conclude that publication in Albuquerque or Houston is reasonably
calculated to apprise Defendant Victoria Xpress, Inc. of the action.
For these reasons, Plaintiff’s motion must be denied.
IV. 	CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Service by Publication (doc. 9) is
DENIED WITHOUT PREJUDICE.
__________________________________________________
GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE
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