UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JOHN H. DAVIS, et al., )

Plaintiffs, )

)

v. ) CAUSE NO.: 2:16-CV-120-PPS-PRC

)

JUDGE JEANNE W. ANDERSON, et al., )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Plaintiffs’ Motion for Service of Lesa Greene by Publication

[DE 86], filed by Plaintiffs on December 15, 2016.

Plaintiffs seek the Court’s leave to serve Defendant Lesa Greene by publication, and they cite

to Federal Rule of Civil Procedure 4(e)(1) for the proposition that they may serve Greene by

publication pursuant to Indiana law. Rule 4(e)(1) permits service of an individual pursuant to the law

of the state in which the district court is located. The state of Indiana, in which this Court in located,

permits service by publication. Indiana Rule of Trial Procedure 4.13 mandates that the party seeking

service by publication “shall submit his request therefor upon the praecipe for summons along with

supporting affidavits that diligent search has been made that the defendant cannot be found, has

concealed [her] whereabouts, or has left the state, and shall prepare the contents of the summons to be

published.” Ind. Tr. R. 4.13(A). “[T]he Due Process Clause demands a diligent search before

attempting notice by publication.” In re Adoption of L.D., 938 N.E.2d 666, 669 (Ind. 2010) (citing

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950)).

“In fulfilling the obligation to exercise due diligence in locating a party, mere gestures are not

enough[,] and the means employed must be such as one desirous of actually informing the absentee

might reasonably adopt to accomplish it.” Hair v. Deutsche Bank Nat. Trust Co., 18 N.E.3d 1019, 1023

(Ind. Ct. App. 2014) (internal quotation marks omitted) (quoting Mullane, 339 U.S. at 315). Parties
seeking service by publication must describe adequate attempts to ascertain the current whereabouts

of the absentee. Id. “[M]inimal or perfunctory efforts to locate a party are insufficient to justify service

by publication.” Id. “[I]f initial attempts to locate or serve a party are fruitless, the circumstances may

require more effort to locate the party instead of proceeding directly to service by publication.” Id.

In McCarty v. Landis Exp., Inc., the court found that there was no diligent search where

plaintiffs had hired someone to conduct internet searches that revealed a Facebook page purportedly

belonging to the party sought to be served, a news article with the address at which service had already

been unsuccessfully attempted, a court record of a landlord-tenant suit involving the party sought to

be served, and a probable address—though a subsequent attempt at service at this address was

unsuccessful. No. 1:10-CV-340, 2011 WL 3678810, at *1-2 (S.D. Ind. Aug. 19, 2011).

Though Plaintiffs have submitted an affidavit, this affidavit only states that John H. Davis, who

is both a plaintiff and counsel for his co-plaintiffs, contacted the Alabama Bar Association, which

confirmed as their address on record the address at which Plaintiffs had unsuccessfully attempted to

serve Greene on multiple occasions. The affidavit does not mention any other attempts to locate

Greene.

Plaintiffs’ efforts fall short of those deemed insufficient in McCarty, and Plaintiffs have not

described more than perfunctory attempts to locate Greene. Plaintiffs have failed to demonstrate that

they have made a diligent search for Greene, and their motion must be denied.

Furthermore, as a procedural matter, Plaintiffs have failed to prepare the contents of the

summons to be published and present them to the Court as required by Indiana Rule of Trial Procedure

4.13(A).

2
Based on the foregoing, the Court hereby DENIES without prejudice the Plaintiffs’ Motion

for Service of Lesa Greene by Publication [DE 86]. The Court GRANTS LEAVE for Plaintiffs to

refile the motion on or before January 31, 2017.

So ORDERED this 4th day of January, 2017.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

3