Pitman v. Xcentric Ventures, LLC
4:16-cv-00179
E.D. Va.Jun 8, 2017Background
- Plaintiffs John M. Pitman III and Peninsula Plastic Surgery Center sued Xcentric Ventures, LLC and others; this motion concerns service on defendant Darren Meade.
- Plaintiffs failed to effect service within Rule 4(m)'s 120-day period but previously showed good cause for more time at a court hearing.
- Plaintiffs used three private investigators, attempted service at multiple addresses, emailed Meade, and allege Meade communicated with counsel about the case.
- Plaintiffs contend Meade is intentionally evading service despite diligent efforts; served defendants do not oppose service by publication.
- Plaintiffs moved for leave to serve Meade by publication under Virginia law; the court ordered publication, mailing to Meade’s last known address, posting at the courthouse, and emailing the order to Meade.
- The court directed publication in the Orange County Register and set a return date for Meade to appear by July 28, 2017; plaintiffs must file a certificate of compliance with the statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether good cause exists to extend time for service under Fed. R. Civ. P. 4(m) | Plaintiffs showed diligent, devoted efforts to locate and serve Meade (private investigators, multiple attempts, email contact). | Meade offered no opposition to the motion; implicit argument that publication is unnecessary was not pressed. | Court found good cause based on Plaintiffs' diligent efforts and granted extension. |
| Whether service by publication is appropriate under Va. Code § 8.01-316/317 | Publication is warranted because Meade is evading service and plaintiffs satisfied statutory diligence and notice requirements. | No opposing factual showing; Meade had communicated by email but avoided in-person service. | Court granted leave for service by publication and imposed statutory publication, mailing, posting, and email requirements. |
| What procedure must plaintiffs follow for publication | Follow Va. Code § 8.01-317: publish once weekly for four weeks, mail to last known address, post at courthouse, send to newspaper within 20 days, file certificate. | N/A | Court ordered plaintiffs to comply and file a certificate; clerk to post order; plaintiffs to email Meade as well. |
| Whether Meade had actual notice sufficient to obviate publication | Plaintiffs argued Meade had actual notice via email communications with counsel, supporting publication as alternative where evasive conduct exists. | N/A | Court noted Meade’s actual notice but still authorized publication because he was evading service. |
Key Cases Cited
- Mendez v. Elliott, 45 F.3d 75 (4th Cir.) (discusses Rule 4(m) good-cause standard)
- Reliable Tax & Financial Servs., Inc. v. H & R Block Eastern Tax Servs., Inc., 212 F. Supp. 2d 592 (E.D. Va.) (good cause requires reasonable, diligent efforts to effect service)
- T & S Rentals v. United States, 164 F.R.D. 422 (N.D. W.Va.) (same standard on diligence for service extensions)
- Khanna v. Khanna, 18 Va. App. 356 (Va. Ct. App.) (diligence requires devoted, painstaking application for publication under Virginia law)
- Dennis v. Jones, 240 Va. 12 (Va.) (affidavit grounds for publication must be factually true)