FIRST MOTION TO CONFIRM TIME ALLOWED FOR SERVICE OR, ALTERNATIVELY, FOR AN EXTENSION OF TIME TO SERVE DEFENDANT MELVIN WILLIAMS

CARL W. HOFFMAN, Magistrate Judge.

Comes now, Plaintiffs, Nationwide Life Insurance Company and Nationwide Life and Annuity Insurance Company (collectively, "Nationwide"), by and through their undersigned attorneys of record, who respectfully move for a confirmation on the time allowed to serve Defendant Melvin Williams or, alternatively, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure for an extension time to serve Defendant Melvin Williams with a copy of the summons and amended complaint in this action. In support of this request, Nationwide states as follows:

Statement of Facts and Procedural Background

Nationwide initiated this action with the filing of a complaint (the "Complaint") on September 26, 2014. [Dkt. Entry #1]. The complaint sought relief against Carl Millberg ("Millberg"), Insight Life Inc. ("Insight Life"), Cassidy Cotten ("Cotton"), Melvin Williams ("Williams"), First Bank of Delaware, Fortris Financial, LLC ("Fortris"), Wells Fargo Bank, N.A., as securities intermediary, and Does 1-20. [Dkt. Entry #1]. Thereafter, Nationwide sought to serve Williams with the Complaint at his last known address. See Affidavit of Robert A. Riether, Esq., ¶ 3, attached as Exhibit "A" hereto. On October 16, 2014, Nationwide was advised by its process server that Williams no longer resided at the address at which Nationwide attempted to serve the Complaint upon him. See Affidavit of Robert A. Riether, Esq., ¶ 4. Nationwide thereafter retained the services of a private investigator to locate a current address for Williams. See Affidavit of Robert A. Riether, Esq., ¶ 5.

On November 10, 2014, Nationwide filed a voluntary dismissal, without prejudice, of its claims against Fortris. [Dkt. Entry 6]. Thereafter, on November 21, 2014, Nationwide filed its first amended complaint (the "Amended Complaint") against Millberg, Insight Life, Cotten, Williams, and PF Participation Funding Trust ("PF Trust"). [Dkt. Entry #7]. Proof of service of the Amended Complaint upon the defendants is due by March 21, 2015. See [Dkt. Entry #7].

On December 3, 2014, PF Trust accepted service of the Amended Complaint. [Dkt. Entry #8]. Millberg was served with the summons and Amended Complaint on December 4, 2014. [Dkt. Entry #10]. Cotten was subsequently served on December 7, 2014. [Dkt. Entry #9]. Insight Life was served with the summons and Amended Complaint on January 14, 2015. [Dkt. Entry #15].

However, to date, and despite repeated attempts to do so, Nationwide has been unable to serve Williams with the summons and Amended Complaint. See Affidavit of Robert A. Riether, Esq., ¶¶ 6, 7. More specifically, Nationwide attempted to serve Williams at the address which Nationwide's private investigator located for Williams on December 6, 2014, twice on December 9, 2014, and twice on December 10, 2014. [Dkt. Entry #11]. After these attempts to serve Williams were unsuccessful, Nationwide again enlisted its private investigator in order to obtain a new address for Williams, or to confirm that the address at which it attempted service upon Williams was still accurate. See Affidavit of Robert A. Riether, Esq., ¶¶ 7, 8. After further investigation, Nationwide's private investigator confirmed that the address in question remained a valid address for Williams. See Affidavit of Robert A. Riether, Esq., ¶ 9. Nationwide thereafter attempted service upon Williams again, twice on January 15, 2015, on January 17, 2015 and January 20, 2015. However, those attempts were also unsuccessful. See Affidavit of Robert A. Riether, Esq., ¶ 10, [Dkt. Entry #24]. By way of greater detail, the address at which Williams is fenced with a lock, and surveyed by cameras, and no one has answered the process serves attempts at the property's gate. [Dkt. Entry #24].

Legal Argument

Based upon the date of filing of the Amended Complaint, as well as the docket report, Nationwide understands that its deadline to serve Williams with the summons and the Amended Complaint to be March 21, 2015. See [Dkt. Entry #7] However, to the extent that the deadline to serve Williams was triggered by the filing of the Complaint, Nationwide should be permitted through March 21, 2015 to serve Williams with the summons and the Amended Complaint.

Fed. R. Civ. P. provided that if a plaintiff shows "good cause" as to why he was unable to serve a defendant within 120 days after the filing of a complaint, "the court must extend the time for service for an appropriate period." See Fed. R. Civ. P. 4(m). Here, such good cause exists. After filing the Complaint, Nationwide attempted to serve Williams at his last known address. See Affidavit of Robert A. Riether, Esq., ¶ 3. When it was determined that Williams was no longer at that address, Nationwide retained the services of a private investigator to locate an address for Williams. See Affidavit of Robert A. Riether, Esq., ¶¶4, 5. After the Amended Complaint was filed on November 21, 2014, Nationwide attempted service of the summons and Amended Complaint upon Williams at the address which Nationwide's private investigator had located for Williams. See Affidavit of Robert A. Riether, Esq., ¶ 6, [Dkt. Entry #11]. When those attempts were unsuccessful, Nationwide again enlisted the services of its private investigator to locate or confirm an address for Williams. See Affidavit of Robert A. Riether, Esq., ¶¶ 7, 8. Once Nationwide's private investigator confirmed Williams' address, Nationwide again attempted service upon Williams, but again to no avail. See Affidavit of Robert A. Riether, Esq., ¶¶ 9, 10, [Dkt. Entry #24]. Accordingly, Nationwide has been diligent in its attempts to serve Williams and its ability to do so has not been the result of intentional delay.

As an alleged conspirator in the scheme alleged by Nationwide in the Amended Complaint, Williams is a necessary and proper party to this action. Nationwide has worked diligently — and will continue to work diligently — to serve Williams with the summons and Amended Complaint prior to March 21, 2015. [Dkt. Entry #7]. However, to the extent that the deadline to serve Williams was triggered by the filing of the Complaint, Nationwide respectfully requests that it be permitted through March 21, 2015 to serve Williams with a summons and the Amended Complaint. It is respectfully submitted that the "good cause" contemplated by Fed. R. Civ. P. 4(m) has been demonstrated here and that such an extension should be granted.

Conclusion

Based upon the foregoing, it is respectfully requested the Court confirm that Nationwide is permitted through March 21, 2015, to serve Williams with the summons and Amended Complaint. Alternatively, to the extent that the deadline to serve Williams was triggered by the filing of the Complaint, Nationwide respectfully requests that, based upon the foregoing demonstration of "good cause," the deadline to serve Williams the summons and Amended Complaint be extended through through March 21, 2015.

ORDER

It is HEREBY ORDERED that the deadline to serve Williams is extended through March 21, 2015.

EXHIBIT "A"

AFFIDAVIT OF ROBERT A. RIETHER, ESQ. IN SUPPORT OF MOTION TO CONFIRM TIME ALLOWED FOR SERVICE OR, ALTERNATIVELY, FOR AN EXTENSION OF TIME TO SERVE DEFENDANT MELVIN WILLIAMS

Affiant, ROBERT A. RIETHER, Esq., being first duly sworn, deposes and states as follows:

1. I am an attorney at law, licensed to practice law before the District Courts of the State of Nevada. I am an associate at the law firm of Cooksey, Toolen, Gage, Duffy & Woog, attorneys of record for Plaintiffs, Nationwide Life Insurance Company and Nationwide Life and Annuity Insurance Company (collectively, "Nationwide").

2. Nationwide initiated this action with the filing of a complaint (the "Complaint") on September 26, 2014.

3. Thereafter, Nationwide sought to serve Defendant Melvin Williams ("Williams") with the Complaint at his last known address.

4. On October 16, 2014, I was advised by the process server retained by Nationwide that Williams no longer resided at the address at which Nationwide attempted to serve the Complaint upon him.

5. Nationwide thereafter retained the services of a private investigator to locate a current address for Williams.

6. After Nationwide filed its amended complaint (the "Amended Complaint") in this action, Nationwide attempted to serve Williams at the address which Nationwide's private investigator located for Williams.

7. Attempts to serve Williams at this address were unsuccessful.

8. Accordingly, Nationwide again enlised its private investigator in order to obtain a new address for Williams, or to confirm that the address at which it attempted service upon Williams was still accurate.

9. After further investigation, Nationwide's private investigator confirmed that the address in question remained a valid address for Williams.

10. Nationwide thereafter attempted service upon Williams again at this address, but those attempts were also unsuccessful.

11. Based on the foregoing, there is good cause to allow Nationwide an extension of time through March 21, 2015 to serve Williams with the summons and amended complaint.