United States District Court, D. Maryland
AUSTIN T. BINKS
KAREN L. COLLIER, et al.
MEMORANDUM OPINION AND ORDER
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.
Austin Binks commenced this action against Karen Collier and
Tomas Collier (collectively, “Defendants”) on
January 31, 2019. (ECF No. 1). The court directed the Clerk
to issue and provide summonses to Plaintiff for service on
Defendants on March 7, 2019. (ECF No. 2). Plaintiff filed a
motion seeking permission to serve Defendants via an
alternate method of service on June 20, 2019. (ECF No. 4).
motion for alternative service recites that Defendants were
mailed a letter on March 10, 2019 asking if they would waive
service. (Id., at 2). Plaintiff received no response
to his request and subsequently retained the services of a
private process server to serve Defendants. (Id.)
During March and April 2019, the private process server
attempted to serve Defendants at their purported address in
Hamilton, Ohio on nine separate occasions but was
unsuccessful. (ECF No. 4-1, at 1). Attached to
Plaintiff's motion is a signed return of non-service from
the private process server. (Id.). In May 2019,
Plaintiff obtained a different private process server to
attempt service, but after three attempts, Defendants were
not served. (Id., at 3-5).
requests permission to serve Defendants beyond the enumerated
means permitted in the Federal Rules of Civil Procedure, the
Maryland Rules, and the Ohio Rules of Civil Procedure because
the Defendants thus far have been “avoiding
service[.]” (ECF No. 4, at 2). Fed.R.Civ.P. 4(e)(2)
permits service on an individual by
(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.
an individual may be served by any means allowed by the state
where the district court is located or the state where
service is to be effected. Fed.R.Civ.P. 4(e)(1). Under
Maryland law, service can be effected
(1) by delivering to the person to be served a copy of the
summons, complaint, and all other papers filed with it; (2)
if the person to be served is an individual, by leaving a
copy of the summons, complaint, and all other papers filed
with it at the individual's dwelling house or usual place
of abode with a resident of suitable age and discretion; or
(3) by mailing to the person to be served a copy of the
summons, complaint, and all other papers filed with it by
certified mail requesting: ‘Restricted Delivery--show
to whom, date, address of delivery.'
Md. Rules 2-121(a). However, if the party intending to effect
service presents the court with an affidavit stating that
good faith efforts to serve an individual defendant in
accordance with Maryland Rule 2-121(a) have failed and
service under Maryland 2-121(b) is impracticable, the court is
permitted to “order any other means of service that it
deems appropriate in the circumstances and reasonably
calculated to give actual notice.” Md. Rule 2-121(c).
To pass constitutional muster, notice must be
“reasonably calculated, under all the 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); Elmco Props.,
Inc. v. Second Nat'l Fed. Sav. Ass'n, 94 F.3d
914, 920-21 (4th Cir. 1996).
service outside of Maryland can also be made in the manner
prescribed by the rules of the state where service is to be
effected if it is reasonably calculated to provide actual
notice. Md. 2-121(a); see also Fed.R.Civ.P. 4(e)(1)
(authorizing service of individuals in accordance with the
rules of the state where service is to be effected).
Plaintiff's motion for alternate method of service
asserts that Defendants live in Ohio. (ECF No. 4). Ohio Rules
of Civil Procedure provide that the clerk of the court can
effect service by United States certified or express mail
return receipt requested, “with instructions to the
delivering postal employee to show to whom delivered, date of
delivery, and address where delivered.” Ohio Civ. R.
4.1(A)(1)(a). The clerk is also permitted to effect service
via a commercial carrier service utilizing any form of
delivery requiring a signed receipt. Ohio Civ. R.
4.1(A)(1)(b). Importantly, Ohio rules require service by mail
to be made by the clerk of the court and not by a party. Ohio
Civ. R. 4.1(A)-(C). Proper service is “[e]videnced by a
return receipt signed by any person.” Ohio Civ. R.
4.1(A)(1)(a). If service by certified mail is
returned and marked unclaimed, Ohio Rule 4.6(D) allows for
service by ordinary mail upon a written request filed with
the clerk. If the ordinary mail is not returned, service is
considered complete. Ohio Civ. R. 4.6(D).
Plaintiff has not offered any affidavits detailing the
methods of service provided for in Md. Rule 2-121(a) have
failed, or that service under Md. Rule 2-121(b) would be
impracticable. Plaintiff has not alleged that Defendants have
moved nor demonstrated how service via newspaper or through
an attorney not authorized to accept service will result in
actual notice. (See ECF No. 4, at 2). Additionally,
Plaintiff has not demonstrated that it requested the clerk of
the court deliver a copy of the summons and complaint to the
postal service, in accordance with Ohio law. Therefore,
alternative service at this juncture is premature. Plaintiff
will be directed to attempt service via certified mail
restricted delivery, return receipt requested and provide the
Clerk the United States Post Office acknowledgement as proof
of service pursuant to Md. Rule 2-121(a)(3) and Md. Rule
it is this 9th day of July, 2019, by the United
States District Court for the District of Maryland, ORDERED
1. Plaintiff's motion to for alternate service (ECF No.
4) BE, and the same hereby IS, DENIED;
2. The Clerk of Court is DIRECTED to transmit a copy of this