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List v. Carwell

United States District Court, D. Minnesota

December 26, 2018

Jason List, and Alicia List, Plaintiffs,
v.
Robert Carwell, an individual, and 0820527 B C LTD, a foreign corporation doing business as Let It Ride Carriers, Defendants.

          Alex Steven Halbach, and Michael D. Bornitz, for Plaintiffs.

          ORDER

          Tony N. Leung United States Magistrate Judge

         I. INTRODUCTION

         This matter comes before the Court on Plaintiffs Jason and Alicia List's Motion for Alternative Service on Defendant 0820527 B C LTD, d/b/a Let It Ride Carriers (ECF No. 16). A hearing was held on December 6, 2018. Attorney Michael D. Bornitz appeared telephonically on behalf of Plaintiffs. Defendants Robert Carwell and 0820527 B C LTD (“Let It Ride”) did not appear.

         II. FACTUAL BACKGROUND

         A. The Accident

         This action arises out of injuries sustained by Jason List following an automobile accident in Hennepin County, Minnesota, in 2015. (See Compl. ¶¶ 1, 11-13, ECF No. 1.) Let It Ride is a motor carrier located in the Canadian province of British Columbia. (Compl. ¶¶ 5, 8.) At the time of the accident, Let It Ride employed Carwell as a commercial truck driver. (Compl. ¶¶ 5, 10.) The accident occurred when the vehicle Carwell was driving collided with a vehicle in which Jason was a passenger. (Compl. ¶¶ 1, 11-13.) At the time of the accident, Carwell was operating the vehicle within the scope of his employment with Let It Ride. (Compl. ¶¶ 11, 13.) Following the accident, Jason was taken to the emergency room by ambulance. (Compl. ¶ 15.)

         B. The Lawsuit

         Based on these events, Plaintiffs brought this action for negligence, negligence per se, respondeat superior, and loss of consortium against Defendants.

         1. Carwell

         Carwell was served on September 5, 2018. (ECF No. 6.) On October 1, Plaintiffs applied for entry of default against Carwell. (ECF No. 7.) On October 11, the Clerk of Court entered default against Carwell. (ECF No. 11.)

         2. Let It Ride

         Between December 2015 and July 2018, Plaintiffs' counsel was in regular contact with Defendants' insurance carrier regarding the events in question. (Mem. in Supp. at 2, ECF No. 18; Aff. of Michael D. Bornitz ¶¶ 3-4, ECF No. 17.) In July 2018, Plaintiffs' counsel inquired if the insurance “carrier would cooperate in getting service of process effectuated, but the [claims] adjuster said they would not cooperate.” (Bornitz Aff. ¶ 6.) Towards the end of July, the claims adjuster asked whether the law suit had been filed. (Bornitz Aff. ¶ 7.) Plaintiffs' counsel has not heard from the “insurance carrier since July 27, despite the carrier having actual notice that [Plaintiffs] were going to be filing and serving the Summons and Complaint.” (Bornitz Aff. ¶ 9.)

         Plaintiffs have tried multiple avenues to serve Let It Ride. Plaintiffs first attempted service at an address in Forest Grove, British Columbia. (Mem. in Supp. at 3; Bornitz Aff. ¶ 11.) This address was listed on the insurance card carried by Carwell and provided to law enforcement at the scene as well as in the Safety and Fitness Electronic Records (“SAFER”) System maintained by the Federal Motor Carrier Safety Administration of the United State Department of Transportation.[1] (Mem. in Supp. at 3; Bornitz Aff. ¶¶ 11-12; Exs. B & C to Bornitz Aff., ECF No. 17-1 at 12-18.) This address led to a residential home where a woman answered the door and stated that she believed Let It Ride was her father's company and he was not home. (Mem. in Supp. at 3-7; Bornitz Aff. ¶¶ 14-16; Ex. E to Bornitz Aff., ECF No. 17-1 at 20.)

         Plaintiffs next attempted service at an address they found online located in Lone Butte, British Columbia. (Mem. in Supp. at 4; Bornitz Aff. ¶¶ 17-18; Exs. F-H to Bornitz Aff., ECF No. 17-1 at 21-37.) The current property owner had no knowledge of Let It Ride, and neighbors informed the process sever that “a truckin[g] company used to operate out of this ...


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