Price v. Thomas

Background

Neal Evan Price, a self-represented plaintiff, sued Kenneth Thomas for defamation, libel, and slander based on statements Thomas allegedly made about Price on Thomas’s YouTube channel on August 15, 2021. Price moved for permission to serve Thomas by publication.

Legal standard

Federal Rule of Civil Procedure 4(e)(1) permits service of process under the law of the state where the federal court is located or where service is made. Under California law, a court may permit service by publication if the plaintiff shows by affidavit—a sworn written statement—that the defendant cannot be served by another method despite reasonable diligence, and that a cause of action exists against the defendant or that the defendant is a necessary or proper party.

The court explained that service by publication is a last resort because it rarely provides actual notice. A plaintiff must show a thorough, systematic, good-faith investigation into the defendant’s location. Depending on the circumstances, that investigation may include attempts at service by mail or substitute service, inquiries of relatives, friends, acquaintances, or an employer, and searches of relevant directories and public records.

Discussion

Price stated that he had made multiple attempts through different companies to serve Thomas at his last known addresses. He submitted an email from an apparent process server reporting that Thomas had moved away from one home, along with an affidavit of non-service stating that Thomas did not live at the attempted address. The court found that neither document was properly authenticated under the court’s local rules.

The court further found that these materials did not show the required reasonable diligence. The record appeared to show only multiple service attempts at unspecified addresses. There was no evidence that Price tried service by mail, which might have produced a forwarding address, or substitute service. There also was no evidence of efforts to locate Thomas through relatives, friends, acquaintances, an employer, directories, voter records, property records, or other relevant records.

Price suggested that Thomas was evading service. The court found that the only indication of evasion was an apparent statement by Thomas about Price’s lawsuit. The court held that this was insufficient, by itself, to establish evasion. The court also noted that Price had not filed the required affidavit establishing that he had a claim against Thomas.

Disposition

The court denied Price’s motion for service by publication without prejudice. The order did not decide the merits of Price’s defamation, libel, or slander claims. The court also referred Price to its resources for people representing themselves, including its website, a self-representation handbook, and legal help centers.