Rojas v. Albertson's, LLC .et al.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RUBEN ROJAS,
Plaintiff,
v. 	No. 2:24-cv-1203 SMD/DLM
ALBERTSON’S, LLC
Defendant/Third-Party Plaintiff,
v.
BRAZITO CAPITAL VENTURE I, LLC, a wholly-owned
subsidiary of MORRIS CAPITAL PARTNERS, LLC, and
C.B. CENTRAL BUILDERS, INC.,
Third-Party Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on the Unopposed Motion for Substituted Service by
Publication filed by Defendant and Third-Party Plaintiff Albertson’s LLC (Albertson’s). (Doc.
57.) Albertson’s seeks an order authorizing service by publication on Third-Party Defendant
Brazito Capital Venture I, LLC (Brazito). (See id.) Having considered the motion and the relevant
authority, the Court finds it should be GRANTED.
I. 	Legal Standards
“Federal Rule of Civil Procedure 4(e)(1) allows for service to be effected on a defendant
in a judicial district of the United States 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.’” Wilmington Sav. Fund Soc’y, FSB v. Apodaca, No. 1:18-cv-0114 JAP/KBM,
2018 WL 3145836, at *1 (D.N.M. June 27, 2018) (quoting Fed. R. Civ. P. 4(e)(1)). “This same
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rule applies to serving a corporation, partnership, or other unincorporated association.” Id. (citing
Fed. R. Civ. P. 4(h)(1)). A plaintiff may serve a defendant by publication pursuant to NMRA 1-
004(J) and (K) in limited circumstances. Id. (quoting Clark v. LeBlanc, 593 P.2d 1075, 1076 (N.M.
1979)).
“Service by publication is ‘a last resort,’ proper ‘if and only if the names and addresses of
the defendants to be served are not reasonably ascertainable’ and it is not ‘feasible to give notice
to the defendant in some manner more likely to bring the action to his attention.’” Roque v. Valdez,
No. 1:24-cv-1233 MLG/SCY, 2025 WL 1393967, at *1 (D.N.M. May 14, 2025) (quoting T.H.
McElvain Oil & Gas Ltd. P’ship v. Grp. I: Benson-Montin-Greer Drilling Corp., 388 P.3d 240,
248–50 (N.M. 2016)). Before the Court authorizes service by publication, “a plaintiff must
demonstrate attempted compliance with the entire hierarchy of service set forth in New Mexico
Rule of Civil Procedure 1-004(G).” Wilmington Sav. Fund Soc’y, FSB, 2018 WL 3145836, at *1
(citing NMRA 1-004(J) (“Upon motion, without notice, and showing by affidavit that service
cannot reasonably be made as provided by this rule, the court may order service by any method or
combination of methods, including publication . . . .”)).
Under NMRA 1-004(G):
(1) Service may be made upon:
(a) a domestic or foreign corporation, a limited liability company or an
equivalent business entity by serving a copy of the process to an officer, a
managing 	or 	a 	general 	agent 	or 	to 	any 	other 	agent 	authorized 	by
appointment, by law or by this rule to receive service of process. If the agent
is one authorized by statute to receive service and the statute so requires, by
also mailing a copy to the defendant;
. . .
(2) If a person described in Subparagraph (a), (b) or (c) of this subparagraph refuses
to accept the process, tendering service as provided in this paragraph shall
constitute valid service. If none of the persons mentioned is available, service may
be made by delivering a copy of the process or other papers to be served at the
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principal office or place of business during regular business hours to the person in
charge.
(3) Service may be made on a person or entity described in Subparagraph (1) of this
paragraph by mail or commercial courier service in the manner provided in
Subparagraph (3) of Paragraph E of this rule.
NMRA 1-004(G).
II. 	Background
Albertson’s filed an Amended Third-Party Complaint on June 25, 2025, naming Brazito as
a third-party defendant. (See Doc. 34.) Albertson’s first attempted service on Brazito under Federal
Rule of Civil Procedure 4(h)(1)(B). (See Doc. 57 at 1–2.) The process server attempted service
“on July 2, 3, and 9, 2025, at 200 Carroll Street, Suite 130, Fort Worth, Texas 76107[,]” the address
listed for Brazito’s registered agent. (See id.; see also Doc. 39 at 1–2.) “Upon each attempt, no one
answered the door to receive the summons, although the process server noted that contact
information cards left previously were picked up.” (Doc. 39 ¶ 3 (citing Doc. 39-1).) “On July 17,
2025, Albertson’s attempted to serve Brazito via certified mail to its registered agent, Bill Morris,
at the same address.” (Id. ¶ 4.) “Once again, no one answered the door, and the certified mail was
not delivered.” (Id. (citing Doc. 39-2).)
On September 29, 2025, the Court entered an Order to Show Cause, directing Albertson’s
to show “good cause why the Third Party Complaint should not be dismissed for failure to
prosecute.” (Doc. 38 at 2.) Albertson’s timely responded and asserted that on September 29, 2025,
it served Brazito via the New Mexico Secretary of State pursuant to NMRA 1-004(e)(1) and N.M.
Stat. Ann. § 38-1-6. (See Doc. 39 ¶ 5 (citing Doc. 39-3).) The Court subsequently ordered
Albertson’s to file proof that service was properly effected. (See Doc. 40.) On October 20, 2025,
“Albertson’s filed the New Mexico Secretary of State’s confirmation of Certified Mail – Return
Receipt Requested, dated September 29, 2025.” (See Doc. 42 at 2 (citing Doc. 41).) “The Secretary
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of State sent the summons and complaint to Brazito at the same address Albertson’s used
unsuccessfully.” (See id. (citing Doc. 41 at 3).) The Court found, however, that service was not
properly effected without evidence of a signed return receipt pursuant to NMRA 1-004(E)(3). (See
id. (citing Fawley v. Lea Cnty. Corr. Facility, No. 2:19-cv0079 DHU/JFR, 2023 WL 5320033, at
*4 (D.N.M. Aug. 18, 2023); Kabana, Inc. v. King Larimar, Inc., No. 1:15-cv-0995 WJ/CG, 2016
WL 10538834, at *3 (D.N.M. May 24, 2016) (noting that “New Mexico law requires that a person
authorized by appointment sign a receipt for the envelope.”) (citing NMRA 1-004(E)(3)).) Again,
the Court ordered Albertson’s to show cause for failure to prosecute and/or to comply with Court
orders. (See id. at 3.)
In its response, Albertson’s stated that it learned on October 27, 2025, “that Morris Capital
Partners, LLC, the owner of [Brazito,] now does business as MCP Ventures, LLC and has its
principal place of business located at 1200 W Magnolia Ave #220 Forth Worth, TX 76104.” (Doc.
43 at 2.) Albertsons’s asserted that business documentation shows Bill Morris, the registered agent
for Morris Capital Partners LLC, is also the CEO of MCP Ventures, LLC. (See id. (citation
omitted).) Albertson’s attempted to serve Brazito via MCP Ventures, LLC, and the Return of
Service reflects that the packet was left with “associate Owen Doiron.” (See Doc. 43-2.) Although
the Court quashed the Order to Show Cause (see Doc. 46), the undersigned later held a status
conference and noted that leaving the service packet with an associate does not establish whether
Doiron was authorized to receive service of process under NMRA 1-004(G). (See Doc. 51.) See
also, e.g., Ham v. CarMax Auto Superstores, Inc., No. 1:23-cv-1057-DHU-JFR, 2024 WL
2091862, at *3 (D.N.M. May 9, 2024) (discussing plaintiff’s burden to show the person who
received process was authorized under Rule 1-004(G)(1)).
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III. 	Analysis
Albertson’s has made numerous unsuccessful attempts to serve Brazito as outlined in
NMRA 1-004(G). Pursuant to Rule 1-004(G)(1)(a), on July 2, 3, and 9, 2025, a process server
personally attempted service at the address listed for Brazito’s registered agent. (See Docs. 57 at
1–2; 39 at 1–2.) No one answered the door, but the process server noted that the contact
information cards left at the address were always picked up. (See Doc. 39 at 2 (citing Doc. 39-1).)
Albertson’s attempted to serve Brazito under Rule 1-004(G)(2) when it left a packet with
Owen Doiron on October 28, 2025. (See Doc. 43-2.) However, Albertson’s was unable to confirm
that Doiron qualified as “the person in charge” as required under that section. (See Doc. 51.)
Finally, Albertson’s attempted mail service on Brazito under Rule 1-004(E)(3) and (G)(3)
when it sent process to Brazito’s registered agent by certified mail on July 17, 2025. (See Doc. 39
at 2 (citing Doc. 39-1).) The certified mail was not delivered; thus, service was not completed.
The Court finds that Albertson’s “has done its due diligence to serve process ‘in a manner
reasonably calculated, under all the circumstances, to apprise the defendant[s] of the existence and
pendency of the action and to afford a reasonable opportunity to appear and defend.’” See Inland
Lease & Rental, Inc. v. DMG Consulting & Dev. Inc., No. 1:24-CV-0608 WJ/LF, 2024 WL
4973505, at *2 (D.N.M. Dec. 4, 2024) (quoting NMRA 1-004(E)). Thus, the Court will grant the
motion to serve by publication.
Rule 1-004(K) provides that “[s]ervice by publication shall be made once each week for
three consecutive weeks . . . [and] is complete on the date of the last publication.” “Service by
publication pursuant to this rule shall be by giving a notice of the pendency of the action in a
newspaper of general circulation in the county where the action is pending” and, relevant here, “in
a newspaper of general circulation in the county which reasonably appears is most likely to give
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the defendant notice of the action.” NMRA 1-004(K)(1).
The Court finds that the amended Notice of Pendency of Suit (Doc. 58-1) is adequate under
Rule 1-004(K). The Court finds that Albertson’s shall publish the notice in the Las Cruces Sun-
News, a newspaper of general circulation in Doña Ana County, New Mexico, and in The Daily
Commercial Record, a newspaper of general circulation in Tarrant County, Texas.
IT IS HEREBY ORDERED that Albertson’s Unopposed Motion for Substituted Service
by Publication (Doc. 57) is GRANTED. Albertson’s shall publish the amended Notice of
Pendency of Suit (Doc. 58-1) in both the Las Cruces Sun-News and The Daily Commercial Record
at least once a week for at least three weeks. Any proof of service Albertson’s files shall contain a
copy of the actual notice published in the newspapers and list the dates of its publication.
_______________________________________
DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
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