United States District Court, D. Nebraska
Gossett United States Magistrate Judge
matter comes before the court on Plaintiffs' Response to
the Court's December 6, 2016, Order (Filing No.
19), timely filed in response to the court's order
directing the Plaintiffs to file evidence of valid service
for the defendant or show cause why this case should not be
dismissed under Federal Rule of Civil Procedure 4(m).
(Filing No. 16).
response states that on July 12, 2016, they employed the
services of Thomas & Thomas Court Reporters and Certified
Legal Video, LLC, to effect service on the defendant.
Plaintiffs made twenty-three attempts to serve the defendant
between July 12, 2016, and September 2016. (Filing No. 19
at pp. 2-3). Counsel for Plaintiffs exchanged several
emails with Thomas & Thomas regarding their efforts to
serve the defendant. Plaintiffs researched the
defendant's appearance and vehicles and provided that
information to the process servers to attempt to serve the
defendant. Personal service was unsuccessful and the process
servers indicated to counsel for Plaintiffs that the
defendant was avoiding service. As a result, Plaintiffs
mailed a copy of the Complaint to the defendant by first
class mail. After review of Plaintiffs' response, the
court finds Plaintiffs have acted diligently and shown good
cause for the failure to timely serve the defendant in
accordance with Fed.R.Civ.P. 4(m).
filed an affidavit from an attorney, Steve Lefler, dated
December 23, 2016, wherein he avers that Overton was served
with a summons and complaint “around the beginning of
October, ” and that Mr. Lefler will enter an appearance
on behalf of Overton, upon resolution of a fee arrangement.
(Filing No. 19-5). Mr. Lefler has not yet entered an
appearance on behalf of the defendant and the defendant has
not filed an answer or otherwise responded to the Complaint.
The court will not consider Mr. Lefler's affidavit as
proof defendant has been properly served under Fed.R.Civ.P.
4. However, for good cause shown, the court will permit
Plaintiffs an extension of time to cure the defects in
service. Accordingly, IT IS ORDERED: