IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PREMIUM PAYMENT PLAN

Plaintiff,

v.

SHANNON CAB CO.,

Defendant.

Civ. Action No. 04-4669

MEMORANDUM/ORDER

Presently pending before the court are plaintiff’s motion to enlarge the time to

serve defendant (Docket No. 5) and petition asking this court to approve alternative

service (Docket No. 8). For the reasons explained herein, the motions will be granted.

Both of plaintiff’s filings concern service of process in a breach of contract action,

filed in October 2004, that is in this court pursuant to 28 U.S.C. § 1332. As a general

matter, Rule 4(m) of the Federal Rules of Civil Procedure requires that service be made

within 120 days after the filing of the complaint, which would have been in February

2005. From the docket, it appears that plaintiff attempted to serve defendant at addresses

on North Front Street, Philadelphia, in November 2004, and service was erroneously

listed on the docket as having been successful. As it turns out, defendant had vacated the

North Front Street location and service was never effected. In March 2005, plaintiff

made further attempts to serve defendant at the residence of defendant’s President,

Case 2:04-cv-04669-JS Document 9 Filed 08/13/07 Page 1 of 6
 Lisa Etemad and her husband, Michael Etemad, live at 7 Mallard Pond Cir., Newtown, 1

PA 18940.

2

Secretary, and Treasurer, Lisa Etemad. As the March 2005 affidavit of non-service 1

reflects, the process server, with the assistance of the Bucks County Sheriff, made “many

attempts” to serve defendant’s officer. Despite the fact that “people [were] inside” the

location, they would “not come to [the] door” and hence could not be served.

After the failed service attempts in March 2005, nothing was docketed in this case

for two years. On March 7, 2007, the court issued a notice to plaintiff warning that it

risked dismissal under Rule 41.1(a) of the Local Rules of Civil Procedure for failure to

prosecute due to the case’s inactivity. Plaintiff thereafter contacted the court to inform it

of its intent to proceed. It was at this time that it came to my attention that service had

never been properly effected. 

On April 12, 2007, in a telephone conversation with plaintiff, it was agreed that the

court should grant plaintiff thirty days to renew its attempts to effect service. Plaintiff

followed up on this conversation with a motion to enlarge the time for service by thirty

days from April 12, 2007, which I will now grant nunc pro tunc.

Within the enlarged period of service, plaintiff again tried to serve defendant, but

was unsuccessful. As reflected in an affidavit from the process server, “several attempts”

were made to serve defendant’s officer at the Etemad residence on April 10, 2007, but the

people inside the residence “refuse[d] to come to [the] door.” Docket # 8, Ex. B. 

Moreover, as an affidavit of plaintiff’s attorney documents, further attempts were made

Case 2:04-cv-04669-JS Document 9 Filed 08/13/07 Page 2 of 6
3

between April 10, 2007 and April 17, 2007, including a stake-out of the Etemad’s

residence at 7 Mallard Pond Cir., Newtown, PA, but defendant’s officer continued to

evade service. See Affidavit of Kenneth Spivack, Esq. (Docket # 8).

In plaintiff’s petition for alternative service, plaintiff provides Postal Service

records confirming that the 7 Mallard Pond Cir. address, where the recent service

attempts were made, is the current address for defendant’s officer. See Docket # 8, Ex. I. 

Moreover, plaintiff’s submissions contain affidavits of unsuccessful service by other

plaintiffs against defendant, further confirming that defendant’s officer was “avoiding

service.” See Docket # 8, Ex. G. It is with all of this in mind that I turn to plaintiff’s

petition for alternative service.

 Due process requires that service of process be “reasonably calculated, under all

circumstances, to apprise interested parties of the pendency of the action and afford them

an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co.,

339 U.S. 306, 314 (1950). Rule 4(e)(1) of the Federal Rules of Civil Procedure directs

that service may be effected in accordance with the rules of the state in which the district

court sits or in which service is effected—which, in this case, is Pennsylvania. Rule 430

of the Pennsylvania Rules of Civil Procedure states that “[i]f service cannot be

made . . . the plaintiff may move the court for special order directing the method of

service.” In determining whether to permit alternative service, the court must evaluate

whether the plaintiff has satisfied three conditions: (1) the “plaintiff must make a ‘good

Case 2:04-cv-04669-JS Document 9 Filed 08/13/07 Page 3 of 6
4

faith’ effort to locate defendant”; (2) “once defendant is located, plaintiff must show that

[he] has made practical efforts to serve [the] defendant under the circumstances. 

Depending on the defendant’s situation, circumstances may warrant, for example, visiting

the defendant’s location on different days of the week, or at different times of day”; and

(3) “if the plaintiff has satisfied the first two steps, the plaintiff’s proposed alternate

means of service must be reasonably calculated to provide the defendant with notice of

the proceedings against him.” Calabro v. Leiner, 464 F. Supp. 2d 470, 472 (E.D. Pa.

2006).

Here, plaintiff has made a good faith effort to locate the defendant; to wit, plaintiff

has confirmed with the Postal Service that defendant’s officer resides at 7 Mallard Pond

Cir. in Newtown, but is refusing to accept service. The affidavit of plaintiff’s attorney

avers that the second step has been satisfied by repeated attempts to serve the defendant’s

officer, including a stake-out at the 7 Mallard Pond Cir. location. Thus, all that is at issue

is the third step—whether plaintiff’s proposed alternate means are calculated to provide

the defendant with the notice of proceedings against it. 

Plaintiff suggests four types of service: (1) advertisement in the Bucks County

Courier Times; (2) regular and first class mail to the 7 Mallard Pond Cir. residence; (3)

service on the Pennsylvania Department of State Corporation Bureau; and (4) posting at

the 7 Mallard Pond Cir. residence. The court believes that these alternate means are

calculated to provide notice to the defendant of the proceedings. Posting at and mailing

Case 2:04-cv-04669-JS Document 9 Filed 08/13/07 Page 4 of 6
5

to the Mallard Pond residence will place defendant’s officer on notice at the legal

residence, while publishing in the Bucks County Courier and serving the State

Corporation Bureau will provide for notice in the unlikely event that defendant’s officer

avoids the legal residence in a further attempt to evade service.

AND NOW, this 10th day of August, 2007, based on the foregoing, plaintiff’s

motion to enlarge the time to serve defendant by thirty days from April 12, 2007 is

GRANTED nunc pro tunc. It is further ORDERED that plaintiff’s motion for alternative

service is GRANTED, permitting service on Defendant, Shannon Cab Co. t/a Golden

Limo Services a/t/a Luxury Limo Company by:

1. Publication

By advertising a notice of the action in the following publication:

Bucks County Courier Times

8400 Bristol Pike

Levittown, PA 19057

2. Regular & First Class mail to:

Shannon Cab Co. t/a Golden Limo Services a/t/a Luxury Limo Co.

c/o Lisa Etemad

7 Mallard Pond Circle

Newtown, PA 18940

3. Secretary of State by forwarding a certified copy of this Honorable

Court’s Order and a copy of the Complaint, by certified mail, return 

receipt requested to:

Department of State

Corporation Bureau

P.O. Box 8722

Harrisburg, PA 17105-8722

Case 2:04-cv-04669-JS Document 9 Filed 08/13/07 Page 5 of 6
6

4. Posting on:

Shannon Cab Co. t/a Golden Limo Services a/t/a Luxury Limo Co.

c/o Lisa Etemad

7 Mallard Pond Circle

Newtown, PA 18940

BY THE COURT:

 /s/ Louis H . P o llak

 

Pollak, J.

Case 2:04-cv-04669-JS Document 9 Filed 08/13/07 Page 6 of 6