Ortiz v. Circle K Stores Incorporated et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Emma Cuadros Ortiz,
Plaintiff,
v.
Circle K Stores Incorporated, et al.,
Defendants.
No. CV-25-02014-PHX-JAT
ORDER
Pending before the Court is Plaintiff Emma Cuadros Ortiz’s Motion for Alternative
Service. (Doc. 19). The Court now rules.
I. BACKGROUND
On May 9, 2025, Plaintiff, on behalf of her minor child J.L., sued Defendants Circle
K Stores, Inc., d/b/a Clean Freak Car Wash (“Circle K”), Raymond Kane Gallardo, and
Jane Doe Gallardo1 (“the Gallardos”), alleging: sexual harassment in violation of Title VII
of the Civil Rights Act of 1964 and the Arizona Civil Rights Act; assault; battery; and
intentional infliction of emotional distress. (Doc. 1 at 6).
On June 6, 2025, Plaintiff personally served Raymond Gallardo at 342 W. Corona
Rd., Tucson, AZ 85756 (“the Corona address”). (Doc. 19-1 at 2). The process server also
informed Mr. Gallardo that his wife, Carolina Gallardo, was being served in place of Jane
Doe Gallardo and left a copy of the complaint and summons with him to effect service on
Mrs. Gallardo. (Doc. 19-1 at 3).
1 Plaintiff’s first amended complaint removed Defendant Jane Doe Gallardo as a defendant
and added Carolina Gallardo as a new defendant. (Doc. 9 at 2; Doc. 11).
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Plaintiff subsequently amended her complaint on September 10, 2025. (Doc. 11).
Plaintiff attempted to serve the Gallardos with the amended complaint four separate times
at the Corona address, but was unsuccessful. (Doc. 19 at 2; Doc. 19-1 at 5). Plaintiff alleges
the Gallardos are intentionally evading service of process and moves the Court to authorize
an alternative method of service.
II. LEGAL STANDARD
Federal Rule of Civil Procedure (“Federal Rule”) 4(e)(1) allows summons to be
served on an individual in a manner that follows “state law for serving a summons in an
action brought in courts of general jurisdiction in the state where the district court is located
or where service is made.” Fed. R. Civ. P. 4(e)(1). Arizona Rule of Civil Procedure
(“Arizona Rule”) 4.1(k) provides procedures for “alternative means of service.” Ariz. R.
Civ. P. 4.1(k). Under this rule, “[i]f a party shows that the means of service provided in
Rule 4.1(c) through Rule 4.1(j) are impracticable, the court may—on motion and without
notice to the person to be served—order that service may be accomplished in another
manner.” Id. 4.1(k)(1). “If the court allows an alternative means of service, the serving
party must make a reasonable effort to provide the person being served with actual notice
of the action’s commencement” and “must mail the summons, the pleading being served,
and any court order authorizing an alternative means of service to the last-known business
or residential address of the person being served.” Id. 4.1(k)(2).
The standard for impracticability under Arizona Rule 4.1(k) “requires something
less than the ‘due diligence’ showing required before service by publication may be
utilized,” and “something less than a complete inability to serve the defendant because the
defendant’s current address is unknown or the defendant completely has avoided service
of process.” Blair v. Burgener, 245 P.3d 898, 903–04 (Ariz. Ct. App. 2010). In the context
of Arizona Rule 4.1(k), “impracticable” simply means that the traditional means of service
have proven to be “extremely difficult or inconvenient.” Id. at 903.
If alternative service of process is appropriate, any proposed alternative method of
service must comport with constitutional notions of due process. Rio Props., Inc. v. Rio
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Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). To meet such a requirement, the
alternative method of service “must be ‘reasonably calculated under all the circumstances,
to apprise the interested parties of the pendency of the action and afford them an
opportunity to present their objections.’” Id. at 1016–17 (quoting Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950)); see also Ruffino v. Lokosky, 425 P.3d 1108,
1113 ¶ 16 (Ariz. Ct. App. 2018) (due process requires that the method of service be “the
best means practicable” to provide notice to the interested party).
III. DISCUSSION
Plaintiff argues that service upon the Gallardos is “impracticable and likely futile.”
(Doc. 19 at 2). The Court finds that Plaintiff has made the requisite showing to justify
alternative service on the Gallardos.
Plaintiff attempted to serve the Gallardos with the amended complaint four times at
the Corona address—September 16 (12:31pm), September 21 (12:58pm), September 26
(8:24am), and September 29 (7:02pm). (Doc. 19-1 at 5). The process server’s affidavit
states that on each of these four occasions, there were multiple vehicles present at the
residence, but no one answered the door. (Doc. 19-1 at 5). Plaintiff alleges that the vehicles
at the property had license plate numbers registered to the Gallardos. (Doc. 19 at 2).
Given the four service attempts—made on four different dates, at different times—
and the Gallardos’ apparent evasion of service, the Court finds the “impracticable”
requirement of Arizona Rule 4.1(k) is satisfied. Ariz. R. Civ. P. 4.1(k); Amaya v. Sw. Auto
Sales & Fin. LLC, CV-25-02180-PHX-JAT, 2025 WL 2637834, at *3 (D. Ariz. Sept. 12,
2025) (authorizing alternative service of process when three service attempts were
unsuccessful and defendant appeared to be evading service); Sobh v. Phoenix Graphix Inc.,
No. CV-18-04073-PHX-DWL, 2019 WL 8326075, at *2 (D. Ariz. Jan. 10, 2019) (noting
that, although plaintiff had not undertaken “great effort” to personally serve the defendants,
“great effort” “is not the standard for impracticability”).
Because alternative service of process is appropriate, the Court must determine
whether Plaintiff’s proposed method of alternative service comports with due process. Rio
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Props., Inc., 284 F.3d at 1016; Ruffino, 425 P.3d at 1113 ¶ 16. Plaintiff proposes serving
the Gallardos by: (1) posting a copy of the summons, first amended complaint, and order
authorizing alternative service upon the Corona address; and (2) mailing copies of the same
to the Corona address via U.S. Certified Mail and U.S. regular first-class mail. (Doc. 19 at
2–3). The Court finds that Plaintiff’s proposed method of service comports with due
process because it is the “best means practicable” to notify the Gallardos of the updated
complaint and allow them the opportunity to respond. Rio Props., Inc., 284 F.3d at 1016;
Ruffino, 425 P.3d at 1113 ¶ 16. Indeed, the Gallardos were served with the original
complaint at the Corona address in June 2025, thus notifying them of the pending action,
and vehicles registered in their names were parked outside that same address during
subsequent service attempts in September 2025.
Because traditional means of service have proven impracticable and the proposed
method of alternative service comports with due process, the Court will grant Plaintiff’s
request.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Alternative Service (Doc. 19) is
granted.
IT IS FURTHER ORDERED that, by November 19, 2025, Plaintiff must file with
the Court satisfactory evidence that a copy of the Summons, Complaint, and this Order
were: (1) posted to the front door of 342 W. Corona Rd., Tucson, AZ 85756; and (2) mailed
to 342 W. Corona Rd., Tucson, AZ 85756 via both U.S. Certified Mail, return receipt
requested, and U.S. regular first-class mail, no return receipt requested. The provision of
this evidence shall be deemed proof of service for the Gallardos.
Dated this 12th day of November, 2025.
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