UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

J & J SPORTS PRODUCTIONS, INC., )

Plaintiff, )

)

v. ) CAUSE NO.: 2:15-CV-353-RL-PRC

)

MARCO PUENTE, individually and d/b/a )

Estrella’s Sports Bar, and RUMURS LLC, )

an unknown business entity d/b/a )

Estrella’s Sports Bar, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on a Motion for Appointment of U.S. Marshal Service to Serve

Summons and Complaint [DE 28], filed by Plaintiff on September 21, 2016. 

Plaintiff filed a Complaint on September 11, 2015. Plaintiff attempted service by the Lake

County Sheriff’s Office, which was returned indicating a bad address when attempted both by

personal service and mail. An alternative address was located and Alias Summons were issued by the

Court. Service was attempted via Certified Mail, Restricted Delivery, Return Receipt Requested and

were returned undeliverable, indicating that the Defendant and registered agent Marco Puente had

moved and left no forwarding address. Further research revealed an address in Phoenix, Arizona.

Alias summons were issued and service was attempted at that address by Certified Mail, Restricted

Delivery, Return Receipt Requested. The summons were returned unclaimed. Plaintiff now asks the

Court to appoint the U.S. Marshal Service to personally attempt service of Summons and Complaint

at the Phoenix, Arizona, address.

Federal Rule of Civil Procedure 4(c), regarding service of summons, provides:

(c) Service.

(1) In General. A summons must be served with a copy of the complaint. The
plaintiff is responsible for having the summons and complaint served within

the time allowed by Rule 4(m) and must furnish the necessary copies to the

person who makes service.

(2) By Whom. Any person who is at least 18 years old and not a party may

serve a summons and complaint.

(3) By a Marshal or Someone Specially Appointed. At the plaintiff’s

request, the court may order that service be made by a United States marshal

or deputy marshal or by a person specially appointed by the court. The court

must so order if the plaintiff is authorized to proceed in forma pauperis under

28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.

Fed. R. Civ. P. 4(c). Because Plaintiff is not proceeding in forma pauperis, the decision to order that

service be made by the United States Marshal Service is discretionary with the court. See id.

Federal Rule of Civil Procedure 4(e) provides the methods for serving an individual within

a judicial district of the United States:

(e) Serving an Individual Within a Judicial District of the United States. Unless

federal law provides otherwise, an individual--other than a minor, an incompetent

person, or a person whose waiver has been filed--may be served in a judicial district

of the United States by:

(1) 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; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the

individual personally;

(B) leaving a copy of each at the individual’s dwelling or usual place

of abode with someone of suitable age and discretion who resides

there; or

(C) delivering a copy of each to an agent authorized by appointment

or by law to receive service of process.

Fed. R. Civ. P. 4(e) (emphasis added). For service on business entities, the Rule provides:

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(h) Serving a Corporation, Partnership, or Association. Unless federal law

provides otherwise or the defendant’s waiver has been filed, a domestic or foreign

corporation, or a partnership or other unincorporated association that is subject to suit

under a common name, must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an

individual; or

(B) by delivering a copy of the summons and of the complaint to an

officer, a managing or general agent, or any other agent authorized by

appointment or by law to receive service of process and--if the agent

is one authorized by statute and the statute so requires--by also

mailing a copy of each to the defendant; or

(2) at a place not within any judicial district of the United States, in any

manner prescribed by Rule 4(f) for serving an individual, except personal

delivery under (f)(2)(C)(i).

Fed. R. Civ. P. 4(h) (emphasis added).

Indiana law allows for serving an individual by the following methods:

(A) In General. Service may be made upon an individual, or an individual acting in

a representative capacity, by:

(1) sending a copy of the summons and complaint by registered or certified

mail or other public means by which a written acknowledgment of receipt may

be requested and obtained to his residence, place of business or employment

with return receipt requested and returned showing receipt of the letter; or

(2) delivering a copy of the summons and complaint to him personally; or

(3) leaving a copy of the summons and complaint at his dwelling house or

usual place of abode; or

(4) serving his agent as provided by rule, statute or valid agreement.

(B) Copy Service to Be Followed With Mail. Whenever service is made under

Clause (3) or (4) of subdivision (A), the person making the service also shall send by

first class mail, a copy of the summons without the complaint to the last known

address of the person being served, and this fact shall be shown upon the return.

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Ind. R. Trial P. 4.1 (emphasis added). As for service on a business entity, Indiana law provides:

(B) Manner of service. Service under subdivision (A) of this rule shall be made on

the proper person in the manner provided by these rules for service upon individuals,

but a person seeking service or his attorney shall not knowingly direct service to be

made at the person’s dwelling house or place of abode, unless such is an address

furnished under the requirements of a statute or valid agreement, or unless an affidavit

on or attached to the summons states that service in another manner is impractical.

Ind. R. Trial P. 4.6 (emphasis added).

Arizona law allows for service on individuals as follows:

(d) Service of Summons Upon Individuals. Service upon an individual from

whom a waiver has not been obtained and filed, other than those specified in

paragraphs (e), (f) and (g) of this Rule 4.1, shall be effected by delivering a copy of

the summons and of the pleading to that individual personally or by leaving copies

thereof at that individual’s dwelling house or usual place of abode with some

person of suitable age and discretion then residing therein or by delivering a copy

of the summons and of the pleading to an agent authorized by appointment or by

law to receive service of process.

Arizona R. Civ. P. 4.1(d) (emphasis added). As for business entities:

(i) Service of Summons Upon Corporations, Partnerships or Other

Unincorporated Associations. Service upon a domestic or foreign corporation or

upon a partnership or other unincorporated association which is subject to suit in a

common name, and from which a waiver has not been obtained and filed, shall be

effected by delivering a copy of the summons and of the pleading to a partner, an

officer, a managing or general agent, or to any other agent authorized by

appointment or by law to receive service of process and, if the agent is one

authorized by statute to receive service and the statute so requires, by also mailing

a copy to the party on whose behalf the agent accepted or received service.

Arizona R. Civ. P. 4.1(i).

Plaintiff has not attempted service of summons on Defendants at the new Arizona address by

delivering a copy to Defendants personally or by leaving a copy with a person of suitable age and

discretion who lives at Defendants’ dwelling or usual place of abode as permitted under the federal

and Arizona rules or by delivering a copy to Dependants personally or by leaving a copy at

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Defendants’ dwelling house or usual place of abode with a copy sent by first class mail as permitted

under the Indiana rules.

Therefore, the Court DENIES without prejudice the Motion for Appointment of U.S.

Marshal Service to Serve Summons and Complaint [DE 28].

SO ORDERED this 22nd day of September, 2016.

 

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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