Axcess Global Sciences v. Nutriana et al

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
Axcess Global Sciences
LLC, a Utah Limited Liability Company,
Plaintiff,
v.
Nutriana, et al.,
Defendants.
MEMORANDUM DECISION AND
ORDER GRANTING EX PARTE MOTION
FOR ALTERNATIVE SERVICE
Case No. 2:25-cv-01038-DBP
Magistrate Judge Dustin B. Pead
Plaintiff Axcess Global Sciences, LLC, (AGS) moves the court for an order allowing
Plaintiff to use alternative service for Defendant Jonathan Jesper. AGS seeks to serve Jesper via
email and social media under Federal Rule 4(e)(1). As set forth herein the court grants the
motion.
BACKGROUND
This case concerns the enforcement of a settlement agreement between the parties. On
November 10, 2024, the parties resolved AGS’s claims of patent infringement and entered into a
written settlement agreement. According to the agreement, Defendants were jointly and severally
obligated to make 28 payments totaling $212,400. Defendants made the first ten payments, but
then failed to make the required payments and AGS filed suit after providing the required ten-
day period to cure. Defendants allegedly still owe AGS $150,400 under the agreement, plus
additional costs and expenses incurred by AGS in enforcing the agreement.
Plaintiff served Defendants Nutrianna, LLC and One Family LLC, at their registered
address. AGS’s process server, however, was unable to serve Jesper at the address he provided in
the agreement where he could receive notices. An unknown individual not associated with Jesper
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lives at that address. Plaintiff notes that Jesper “is a savvy online digital creator, with a strong
digital footprint on platforms such as LinkedIn, Facebook, YouTube, X, and other websites.”1
DISCUSSION
The party seeking service by alternate means “need[] only to demonstrate that the facts
and circumstances of the present case necessitate[] the district court’s intervention.”2 The
alternate means of service must comport with due process. “To meet this requirement, the
method of service crafted by the district court must be ‘reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.’”3
Under the Federal Rules the court may allow service as permitted by Utah Law.4 Utah
law provides:
If the identity or whereabouts of the person to be served are unknown and cannot
be ascertained through reasonable diligence, if service upon all of the individual
parties is impracticable under the circumstances, or if there is good cause to
believe that the person to be served is avoiding service, the party seeking service
may file a motion to allow service by some other means. An affidavit or
declaration supporting the motion must set forth the efforts made to identify,
locate, and serve the party, or the circumstances that make it impracticable to
serve all of the individual parties.5
“A determination of reasonable diligence … properly focuses on the plaintiff's efforts to
locate the defendant. Relevant factors may include the number of potential defendants involved,
1 Motion at 3.
2 Rio Props, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002).
3 Id. (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).
4 See Fed. R. Civ. P. 4(e)(1) (noting that an individual “may be served 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”).
5 Utah R. Civ. P. 4(d)(5)(A).
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the projected expense of searching for them, and the number and type of sources of available
information regarding their possible whereabouts ....” 6
This “reasonable diligence standard does not require a plaintiff to exhaust all possibilities
to locate and serve a defendant. It does, however, require more than perfunctory performance.”7
The diligence to be pursued and shown by the affidavit is that which is reasonable
under the circumstances and not all possible diligence which may be conceived.
Nor is it that diligence which stops just short of the place where if it were
continued might reasonably be expected to uncover an address or the fact of death
of the person on whom service is sought.... [Reasonable diligence] is that
diligence which is appropriate to accomplish the end sought and which is
reasonably calculated to do so. If the end sought is the address of an out-of-state
defendant it encompasses those steps most likely, under the circumstances, to
accomplish that result.8
Plaintiff attempted to serve Jesper at the address listed in the settlement agreement, but an
unknown resident named Vitoria lives at the address and has been there for one year.9 Following
the unsuccessful attempt, counsel for Plaintiff did research discovering that Jesper claims to be
an online digital creator. Plaintiff’s counsel has identified several online profiles of Jesper and
these profiles support and promote his online businesses, which are codefendants in this case. In
addition, Jesper is the owner of Nutriana, which also uses an email in connection with its online
business.
Given the inability to serve Jesper, AGS proposes service of its Complaint by sending the
Summons, Complaint, and a copy of the court’s order to the following email addresses and social
media accounts:
6 Commonwealth Property Advocates, LLC., v. National City Mortgage, et al., 2010 WL 465843, *1 (D. Utah 2010)
(citing to Jackson Constr. Co., Inc. v. Marrs, 100 P.3d 1211, 1215 (Utah 2004)).
7 Id.
8 Parker v. Ross, 217 P.2d 373, 379 (Utah 1950) (Wolfe, J., concurring).
9 See Declartion of Brian N. Platt In Support of Plaintiff’s Ex Parte Motion for Service by Alternative Means, ECF
No. 14 at 2.
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• 	koshea@oshealawllc.com
• 	info@shopnutriana.com
• 	https://www.linkedin.com/in/jonathan-jesper-a4b12781/
• 	https://www.facebook.com/jonathan.jesper
Plaintiff argues service by email and social media comports with the constitutional
notions of due process because it is “reasonably calculated to give notice to Jesper.”10 The court
agrees. Due process requires notice “reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to present
their objections.”11 Courts have previously allowed service by email.12 Serving Defendant via
email and his social media accounts is reasonably calculated under the circumstances to apprise
Jesper of this suit. The Motion therefore is granted.
ORDER
Based upon the foregoing, the court hereby orders
1. 	The Motion is GRANTED.
2. 	Within 21 days from the date of this Memorandum Decision and Order, AGS must
a. 	Serve a copy of the Complaint, Summons, and a copy of this order on the email and
social media accounts listed above.
3. 	Service on Jesper shall be deemed complete upon AGS sending the above-referenced
materials to the emails and social media accounts.
10 Motion at 4.
11 Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Jones v. Flowers, 547 U.S. 220,
225 (2006) (“[D]ue process does not require actual notice ....”).
12 See Blackbird Capital LLC v. Worth Group Capital, LLC, No. 2:21-CV-00037, 2022 WL 464234 (D. Utah Feb.
15, 2022) (permitting service by email on defendant who was believed to be located in Canada); Aplion Holdings v.
Diversity Wound Solutions, No. 2:20-cv-00139 (D. Utah Apr. 27, 2020), ECF 7 at 2 (finding email service through
principal to be an appropriate means of alternative service).
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4. 	AGS must promptly file proof of service with the court.
IT IS SO ORDERED.
DATED this 7 January 2026.
Dustin B. Pead
United States Magistrate Judge
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