ADI Global Distribution, a division of Resideo Technologies, Inc. v. Green, 2:20-cv-03869

Background

ADI filed a breach-of-contract action on August 21, 2020; Green had executed a personal guarantee for IPVision, LLC's purchases.
On August 31, 2020 ADI’s counsel emailed and mailed the summons, complaint, waiver form, and arbitration notice to Green; Green emailed on September 1, 2020 acknowledging the payments but did not return the waiver or otherwise appear.
Court ordered ADI to show cause under Fed. R. Civ. P. 4(m) because no affidavit of service had been filed; Court found initial service attempts insufficient and gave ADI until April 23, 2021 to effect service.
ADI retained process servers: three failed attempts at Green’s Florida address, then an investigator located an Arizona address tied to Green’s driver’s license and four more failed attempts at that residence.
ADI moved for leave to effect alternative service by email (to bgreen@ipvis.com, which Green had used) and by mailing the summons, complaint, and a pre-paid waiver to Green’s last-known address.
The magistrate judge held traditional service was impracticable under Ariz. R. Civ. P. 4.1(k), found email reasonably calculated to give notice (Green had previously replied), and granted alternative service by email (with delivery/read receipts) and by mail with a pre-paid waiver; ADI ordered to file proof of service.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether traditional service attempts were sufficiently diligent to preclude alternative service	ADI: multiple in-person attempts at Florida and Arizona addresses failed; service by statute impracticable so court may authorize alternative means under Ariz. R. Civ. P. 4.1(k)	Green: (implicitly) traditional methods were required; initial mailing/email without return not effective service	Court: Seven failed in-person attempts showed traditional service impracticable under Arizona rule; alternative service allowed
Whether service by email satisfies due process	ADI: Green previously used the email (responded Sept. 1, 2020), so email is reasonably calculated to notify him; request delivery/read receipts and mail follow-up	Green: (implicitly) email alone may be insufficient; initial emailed materials weren’t returned	Court: Email to bgreen@ipvis.com, combined with mailed summons and pre-paid waiver, comports with Mullane due process standard and is authorized

Key Cases Cited

McDonald v. Mabee, 243 U.S. 90 (1917) (endorsing flexible substitutes for personal service to effectuate substantial justice)
Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306 (1950) (due process requires notice reasonably calculated to apprise interested parties)
Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002) (framework for alternative service and email under due process)
Blair v. Burgener, 226 Ariz. 213, 245 P.3d 898 (Ct. App. 2010) (Arizona’s impracticability standard for alternative service does not require exhausting every statutory method)
Bank of N.Y. Mellon v. Dodev, 246 Ariz. 1, 433 P.3d 549 (Ct. App. 2018) (defining "impracticable" as extremely difficult or inconvenient)
Kelly v. Lewis, 220 A.D.2d 485, 632 N.Y.S.2d 186 (2d Dep't 1995) (multiple failed attempts can justify alternative service)
Ferrarese v. Shaw, 164 F. Supp. 3d 361 (E.D.N.Y. 2016) (email service appropriate where email likely to reach defendant)
Group One Ltd. v. GTE GmbH, 523 F. Supp. 3d 323 (E.D.N.Y. 2021) (prior use of an email address by defendant supports alternative service by that address)
Obot v. Navient Sols., Inc., [citation="726 F. App'x 47"] (2d Cir. 2018) (service may be evaluated under the law of the state where defendant is served)
Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v. Dupont, [citation="169 F. App'x 45"] (2d Cir. 2006) (applying state service law in federal diversity cases)
Webster Indus., Inc. v. Northwood Doors, Inc., 244 F. Supp. 2d 988 (N.D. Iowa 2003) (if service is valid under one qualifying state's rules, no need to choose between states)