United States v. Rodrigue (645 F. Supp. 2d 1310, 2009)

OPINION

RIDGWAY, Judge.

In this action, the Government seeks to collect civil penalties, plus interest and costs, imposed on the Defendants for allegedly transacting customs business without a valid broker’s license.

Pending before the Court is Plaintiffs Motion for an Extension of Time, which the Government filed nunc pro tunc. See Plaintiffs Motion for Leave to File Nunc Pro Tunc Plaintiffs Motion for an Extension of Time; Plaintiffs Motion for an Extension of Time (“Pl.’s Motion for Extension of Time”). In its Motion for an Extension of Time, the Government seeks a 90-day enlargement of the 120-day period for service of process established in USCIT Rule 4(l), to extend from September 18, 2008 to December 17, 2008 the Government’s deadline for effecting service on the two Defendants.

Also pending is Plaintiffs Motion for Leave to Serve by Publication and Motion for an Extension of Time, in which the Government requests a second 90-day extension of the deadline for service of process (ie., an extension through March 17, 2009), and, moreover, seeks leave to make constructive service via publication in a Florida newspaper. See Plaintiffs Motion for Leave to Serve by Publication and Motion for an Extension of Time (“Pl.’s Motion for Service by Publication”).

Subject matter jurisdiction lies under 28 U.S.C. § 1582 (2000). For the reasons detailed below, the Government’s motions must be denied, and this action dismissed.

I. Background

According to the Complaint, father and son Defendants Ronald and Leroy Rodrigue operated a freight forwarding company in Miami, Florida, and transacted customs business without a valid broker’s license. See Complaint ¶¶ 3^4. Multiple pre-penalty and penalty notices were issued to the two Defendants, advising them that the U.S. Bureau of Customs and Border Protection was assessing civil penalties of $10,000 each “for transacting customs business, other than solely on behalf of themselves, without a valid brokers license.” See Complaint ¶ 12. The Complaint further alleges that, although Customs has repeatedly billed both Defendants, the penalties remain unpaid. See Complaint ¶¶ 14, 16-17.

Seeking to collect the civil penalties, plus interest and costs, the Government filed this action on May 21, 2008 — the very day on which the five-year statute of limitations would have expired. See Complaint; Audio Recording of Hearing at 00:40:25-00:40:53 (noting that statute of limitations would have expired May 21, 2008); 19 U.S.C. § 1641(d)(4) (2000) (statute of limitations). The Government was on notice that, pursuant to USCIT Rule 4(l), it had 120 days from the filing of the Complaint — that is, until September 18, 2008 — to effect service on Ronald and Leroy Rodrigue. See USCIT R. 4(l ). The Government was also on notice that the stakes were high, and that it had zero margin for error or delay. See Audio Recording of Hearing at 03:27:25-03:27:38. Because the Government had run down the clock on the statute of limitations, the Government would be time-barred from refiling if failure to effect service within the 120-day period resulted in the dismissal of this action.

The same day that it commenced this action, May 21, 2008, the Government mailed copies of the summons, Complaint, and waiver of service form to the two Defendants. The documents addressed to Leroy Rodrigue were sent via first class mail to 8618 SW 156th Place, Miami, Florida 33193, while Ronald Rodrigue’s copies were mailed to 458 Buffalo Way, North Fort Myers, Florida. See Complaint, at Certificate of Service. According to the certificate of service, the zip code used for the mailing to Ronald Rodrigue was 33197. The correct zip code, however, is 33917. See Audio Recording of Hearing at 00:44:49-00:45:21, 00:49:34-00:50:47, 01:02:22-01:02:38 (noting that 33917 is correct zip code); Complaint, at Certificate of Service (indicating that mailing was sent to zip code 33197).

Months before the Complaint was filed, the Florida Department of Highway Safety & Motor Vehicles had advised Customs that its most recent address-of-record for Leroy Rodrigue was the address on 156th Place. See Carpió Declaration (Pl.’s Motion for Service by Publication, App. A) ¶ 7. At the same time, the same Florida agency also advised that its most recent address-of-record for Ronald Rodrigue was 712 Bamboo Palm Way, Oviedo, Florida 32765, and that the Buffalo Way address was Ronald Rodrigue’s prior address. See Carpió Declaration ¶¶ 8-9. Customs provided all that information to the Department of Justice as part of its “litigation report” dated February 13, 2008; and Customs apparently had the information in its possession for some weeks before that. See Carpió Declaration ¶¶ 6-9; Audio Recording of Hearing at 00:19:55-00:20:10, 02:47:20-02:48:05 (stating that report from Florida Department of Highway Safety & Motor Vehicles was dated January 22, 2008). Notwithstanding the more up-to-date address on Bamboo Palm Way that was provided by the Florida authorities, the Government mistakenly directed its May 21, 2008 mailing to Ronald- Rodrigue at his old address on Buffalo Way.

On June 6, 2008, the Government’s May 21, 2008 mailing to Ronald Rodrigue was returned to the Government. See Audio Recording of Hearing at 00:51:23-00:51:47. The envelope, which was labeled “Return to Sender,” indicated that it had first been forwarded to the Bamboo Palm Way address. See Audio Recording of Hearing at 00:44:31-00:44:49, 00:45:35-00:45:44, 00:46:16-00:47:39, 01:12:30-01:13:03, 03:24:30-03:24:37. The mailing to Leroy Rodrigue was not returned. See Audio Recording of Hearing at 01:43:46-01:43:53 (stating that May 21, 2008 mailing addressed to Ronald Rodrigue was only mailing ever returned to Government).

On July 2, 2008, almost a month after the mailing to Ronald Rodrigue had been returned to the Government (and 42 days after the filing of the Complaint) — with no executed waiver of service in hand from either of the two Defendants — the Government again mailed copies of the summons, Complaint, and waiver of service form to the Rodrigues. See Pl.’s Motion for Extension of Time; Audio Recording of Hearing at 00:21:15-00:21:26, 00:52:26-00:52:36, 02:57:21-02:57:47. For Leroy Rodrigue, the Government used the same address on 156th Place in Miami. See Audio Recording of Hearing at 00:52:38-00:52:51, 02:57:48-02:57:57, 02:58:23-02:58:33. For Ronald Rodrigue, the Government sent the mailing to the Bamboo Palm Way address — the address that the Florida authorities had previously provided, but which the Government had failed to use for its May 21, 2008 mailing. See Carpió Declaration ¶¶ 6, 8; Audio Recording of Hearing at 00:52:38-00:52:57. Neither mailing was returned to the Government. See Audio Recording of Hearing at 00:53:28-00:53:33, 01:43:30-01:43:33, 02:58:38-02:58:41.

The Government took no further action in the 57 days that followed. See Audio Recording of Hearing at 00:55:41-00:56:00, 02:59:37-02:59:41. Finally, on August 29, 2008 — a mere 21 days before the 120-day period for service of process expired, and with the statute of limitations long gone— the Government engaged a professional process service firm, Capitol Process Services. See Pl.’s Motion for Extension of Time; Affidavit of Non-Service; Audio Recording of Hearing at 00:54:48-00:55:40, 02:58:42-02:59:34.

Rather than attempting to serve Ronald Rodrigue at the Bamboo Palm Way address, the Government instead instructed the process server to attempt service at 458 Buffalo Way in North Fort Myers— the address to which the summons, Complaint, and waiver of service form originally had been mailed on May 21, 2008 (before being forwarded to Bamboo Palm Way), and the address which the Florida Department of Highway Safety & Motor Vehicles had clearly indicated was a prior address for Ronald Rodrigue. See Pl.’s Motion for Extension of Time; Affidavit of Non-Service; Audio Recording of Hearing at 01:28:31-01:29:30; Carpió Declaration ¶¶ 6, 8-9.

The Government instructed the process servers to attempt to serve Leroy Rodrigue not at the address on 156th Place in Miami (to which the two mailings had been sent), but, instead, at 15652 SW 85th Terrace, Miami, Florida 33193 — purportedly a former address of Leroy Rodrigue, which was the subject of an alleged tip to Customs. See PL’s Motion for Extension of Time; Affidavit of Diligent Search and Inquiry; Audio Recording of Hearing at 00:22:30-00:23:30, 03:00:00-03:01:00, 04:16:04-04:16:22.

According to the Affidavit of Diligent Search and Inquiry executed by the process server who sought to serve Leroy Rodrigue, an individual named Luis Martinez resides at the 85th Terrace address. See Affidavit of Diligent Search and Inquiry. Mr. Martinez advised the process server that he “[has] never heard of Leroy Rodrigue,” and that “he [Mr. Martinez] rents from the brother of the owner Ronald Hodgkins, who [had] recently passed away.” Id. The affidavit — dated September 15, 2008 — states nothing more of substance. The Government elected not to have the process server attempt service on Leroy Rodrigue at the address on 156th Place in Miami, or at any other address. The Government made no additional inquiries and took no further action to locate or serve Leroy Rodrigue in the three days remaining before the 120-day period for service of process ended on September 18, 2008.

It is no surprise that the process server who sought to serve Ronald Rodrigue at the address on Buffalo Way — the address that the Florida authorities had identified as Ronald Rodrigue’s prior address — was no more successful. According to the Affidavit of Non-Service that he filed, the process server made seven attempts at that address between September 1 and September 13, 2008, and then “discontinued attempting service of the Summons and Complaint.” See Affidavit of Non-Service. The Government elected not to send the process server to the Bamboo Palm Way address^ — the address that the Florida Department of Highway Safety & Motor Vehicles had identified as Ronald Rodrigue’s most recent address-of-record, and the address to which the U.S. Postal Service had forwarded the Government’s May 21, 2008 mailing. Nor did the Government attempt service at any other address. The Government made no additional inquiries and took no further action to locate or serve Ronald Rodrigue in the five days remaining before the 120-day period for service of process ended on September 18, 2008.

Indeed, the Government made no additional inquiries and took no further action to locate or serve either of the two Defendants until late January 2009, after the Court had scheduled a hearing on the pending motions. See Audio Recording of Hearing at 01:14:05-01:49:05, 01:51:23-01:52:04, 02:38:10-02:38:47, 03:07:35-03:07:45, 03:08:00-03:08:13, 03:08:38-03:08:57. In light of the impending hearing on the pending motions, the Government decided to attempt service again. See Audio Recording of Hearing at 01:02:42-01:02:53, 01:52:26-01:52:42, 02:11:37-02:12:25, 02:14:28-02:14:49, 02:26:28-02:26:45.

At the April 6, 2009 hearing, the Court learned for the first time that, at 8:30 a.m. on February 25, 2009 — more than nine months after the statute of limitations expired, and more than five months after the end of the 120-day period for effecting service of process — a professional process server had successfully served Ronald Rodrigue at the Bamboo Palm Way address (the address that the Florida Department of Highway Safety & Motor Vehicles had provided to the Government more than a year earlier, and a different address than the process server had used in September 2008). See Audio Recording of Hearing at 00:06:54-00:06:59, 01:01:35-01:02:19, 01:03:38-01:04:27, 01:06:19-01:06:25, 02:29:24-02:29:34, 02:30:00-02:30:59. The Government offered no explanation for its failure to timely notify the Court that service had been effected. See Audio Recording of Hearing at 00:06:54-00:07:02, 02:32:23-02:32:47. And no proof of service was filed with the court — either before the hearing, or since. See USCIT R. 4(k) (requiring that proof of service be filed with court, except where service has been waived).

A professional process server reportedly also made an attempt to serve Leroy Rodrigue, at 11:13 a.m. on February 27, 2009, at the address on 156th Place — again, a different address than the process server had used in September 2008. However, that attempt was not successful. See Audio Recording of Hearing at 02:42:47-02:44:07, 02:44:53-02:45:08. Since that time, the Government has made no further efforts to locate or serve Leroy Rodrigue. See Audio Recording of Hearing at 03:40:56-03:41:28. And the Government failed to ask Ronald Rodrigue about the whereabouts of his son. See Audio Recording of Hearing at 03:41:30-03:44:27. To date, Leroy Rodrigue still has not been served.

II. Analysis

Proper service of process “is not some mindless technicality,” but — rather— “a critical part of a lawsuit.” Del Raine v. Carlson, 826 F.2d 698, 704 (7th Cir.1987); Troxell v. Fedders of North America, Inc., 160 F.3d 381, 382 (7th Cir.1998). “[Unless the procedural requirements for effective service of process are satisfied, a court lacks authority to exercise personal jurisdiction over [a] defendant.” Candido v. District of Columbia, 242 F.R.D. 151, 160 (D.D.C.2007) (citations omitted). In its Motion for an Extension of Time, the Government seeks a 90-day enlargement of the 120-day period for service of process, to extend from September 18, 2008 to December 17, 2008 the Government’s deadline for effecting service on the two Defendants. See Plaintiffs Motion for an Extension of Time (“Pl.’s Motion for Extension of Time”). In its later-filed Motion for Leave to Serve by Publication and Motion for an Extension of Time, the Government requests a further 90-day extension of the deadline for service of process (i.e., an extension through March 17, 2009), and, moreover, seeks leave to effect constructive service via publication in a Florida newspaper. See Plaintiffs Motion for Leave to Serve by Publication and Motion for an Extension of Time (“PL’s Motion for Service by Publication”).

The Government’s motions for extensions of time and for leave to serve by publication are analyzed below, in turn. As discussed there, the Government has failed to show good cause for its failure to serve the two Defendants within the 120-day period for effecting service of process. Further, although the Government failed to argue that an extension of time would be warranted even in the absence of good cause, a review of the relevant factors counsels against a discretionary extension. The requested extensions of time must therefore be denied. Moreover, the denial of the requested extensions of time moots the motion for leave to serve by publication. However, as set forth below, even if the extensions of time were granted, the Government has failed to comply with the requirements of the relevant Florida statute. Accordingly, even if the motion for leave to serve by publication were evaluated on its merits, the motion nevertheless would be denied.

A. The Government’s Motions to Extend the Time for Service of Process

The time limits for service of process in this action are governed by Rule 4(i) of the Rules of the Court, which provides, in relevant part:

If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

USCIT R. 4(Z); see also Fed.R.Civ.P. 4(m). Thus, “[a] court must grant additional time to complete service if plaintiff demonstrates good cause for failing to serve defendant within the 120-day period.” 1 Moore’s Federal Practice § 4.82[1] (Matthew Bender 3d ed.) (emphasis added). In addition, the court may grant an extension even absent good cause, as a matter of the court’s discretion. See id. at § 4.83.

As discussed below, the Government in this case could hardly have done less to effect service of process on the Defendants within the 120-day period established for that purpose. Under the circumstances, extending the time for service here would set a dangerous precedent, and would grant the Government (and, indeed, all parties) virtual carte blanche in future cases.

1. Extension of Time for “Good Cause”

In the case at bar, the Government asserts broadly that there is “good cause” for its failure to serve Defendants within the 120-day period following the filing of the Complaint. See Pl.’s Motion for Extension of Time at 1; PL’s Motion for Service by Publication at 1. But the facts belie the Government’s claim.

As one leading treatise explains the concept of “good cause”:

“[G]ood cause is likely (but not always) to be found when the plaintiffs failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances, or the plaintiff is proceeding pro se or informa pauperis.” Pro se status or any of the other listed explanations for a failure to make timely service, however, is not automatically enough to constitute good cause for purposes of [Federal Rule of Civil Procedure] 4(m) [or USCIT Rule mi

4B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1137 (3d ed.2002) (emphasis added). On the other hand, the treatise explains:

[F]ederal courts have held that good cause has not been shown in a large number of cases and have rejected excuses based on a failure to receive a waiver of formal service, ignorance of the rule [on service of process], the absence of prejudice to the defendant, office moves or personal problems, the belief that the time requirement was only technical, the filing of an amended complaint, inadvertence of counsel, or the expenditure of efforts that fall short of real diligence by the serving party.

Wright & Miller, Federal Practice and Procedure § 1137 (emphasis added). Although the courts have articulated varying formulations of the standard for “good cause,” they are in accord on the requirement of a showing of “real diligence by the serving party.”

In a case such as this, “good cause” requires that a plaintiff exert “such efforts at service as are consistent with a recognition that 120 days may otherwise mark the death of the action.” United States v. Gen’l Int’l Mktg. Group, 14 CIT 545, 548, 742 F.Supp. 1173, 1176 (1990) (quoted with approval in United States v. World Commodities Equipment Corp., 32 CIT -, -, 2008 WL 748677 *2 (2008)); see also Tuke v. United States, 76 F.3d 155, 156 (7th Cir.1996) (Easterbrook, J.) (affirming dismissal of action, noting that “[a]n attorney who files suit when the statute of limitations is about to expire must take special care to achieve timely service of process, because a slip-up is fatal”). The plaintiff “who seeks to rely on the good cause provision [of the rule governing the timing of service of process] must show meticulous efforts to comply with the rule.” In re Kirkland, 86 F.3d 172, 176 (10th Cir.1996) (emphasis added). “[H]alf-hearted efforts” at service simply do not suffice. Petrucelli v. Bohringer and Ratzinger, GMBH, 46 F.3d 1298, 1307 (3d Cir.1995) (quoting Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir.1987)). In short, “[t]he lesson to the federal plaintiffs lawyer is not to take any chances. Treat the 120 days with the respect reserved for a time bomb.” Petrucelli, 46 F.3d at 1307 (quoting Braxton v. United States, 817 F.2d 238, 241 (3d Cir.1987), quoting Siegel, Practice Commentary on Amendment of Federal Rule 4 (Eff. Feb. 26, 1983) with Special Statute of Limitations Precautions, 96 F.R.D. 88, 109 (1983)) (emphasis added); see also Cox v. Sandia Corp., 941 F.2d 1124, 1126 (10th Cir.1991) (same quotation).

Here, the Government’s efforts to effect service within the 120-day period fell well short of “meticulous.” Nothing about the Government’s actions could be described as reflecting “a recognition that 120 days may otherwise mark the death of the action,” or a sense that the 120-day period was a ticking “time bomb.”

The Government’s approach to service in this ease was simply too cavalier. “It is ... clear that relying on [reaching defendants via mail] cannot ordinarily be considered a reasonable attempt to accomplish service within 120 days and cannot be viewed as a recognition of the existence of a real deadline.” United States v. Gen’l Int’l Mktg. Group, 14 CIT at 549, 742 F.Supp. at 1176. “When twenty days have passed after mailing without return of the acknowledgment that the mail was received [or here, for example, when a certain amount of time has passed without the return of an executed waiver of service form], the diligent plaintiff should recognize that other means of service will have to be used within the approximately 100 days which remain.” Id., 14 CIT at 549, 742 F.Supp. at 1176; see also Petrucelli, 46 F.3d at 1307 (affirming denial of extension of time, stating that “[a] prudent attorney exercising reasonable care and diligence would have inquired further into the matter when it was obvious that the acknowledgment form [included with plaintiffs attempted service of complaint] was not forthcoming”). In the instant case, when the Government’s first mailing failed to yield executed waivers of service from the two Defendants, the Government simply made another mailing, rather than taking more active steps to accomplish service of process. See Pl.’s Motion for Extension of Time; Audio Recording of Hearing at 00:21:15-00:21:26, 00:52:26-00:52:36, 02:57:21-02:57:47.

Moreover, to the extent that the Government sought to use the U.S. mail to contact the Defendants and seek waivers of service, its attempts were sloppy and haphazard to say the least. Four months before the Complaint was filed, the Florida Department of Highway Safety & Motor Vehicles had provided the Government with Ronald Rodrigue’s most recent address-of-record — the Bamboo Palm Way address, where he was eventually served earlier this year. At the same time, the Florida authorities had advised the Government that the Buffalo Way address was Ronald Rodrigue’s prior address. See Carpió Declaration ¶¶ 6, 8-9. Inexplicably, the Government nevertheless sent its first mailing to Ronald Rodrigue at the out-of-date Buffalo Way address. See Complaint, at Certificate of Service. And it appears that, even as to that out-of-date Buffalo Way address, the Government got the zip code wrong. See Audio Recording of Hearing at 00:44:49-00:45:21, 00:49:34-00:50:47, 01:02:22-01:02:38 (noting that 33917 is correct zip code); Complaint, at Certificate of Service (indicating that mailing was sent to zip code 33197).

Under circumstances such as these, the Government’s attempts to contact the Defendants through the use of mail not only do not constitute evidence of diligence in attempting to effect service within the 120-day period — quite to the contrary, such careless mistakes affirmatively refute any suggestion that the Government’s efforts to effect timely service were “meticulous,” as required to establish the existence of “good cause.”

The Government’s tardiness in retaining a professional process service firm similarly weighs heavily against a finding of “good cause.” See, e.g., United States v. Gen’l Int’l Mktg. Group, 14 CIT at 549, 742 F.Supp. at 1176 (finding no good cause in light of, inter alia, “the long period of time which [e]lapsed between the failure of mail service and the day when personal service was first attempted”); Cox v. Sandia Corp., 941 F.2d at 1126 (affirming dismissal for failure to effect timely service, noting that “[h]ad [plaintiffs] counsel promptly sent process to the server, he might well have avoided the instant problem”); McIsaac v. Ford, 193 F.Supp.2d 382, 384 (D.Mass.2002) (finding no good cause where, inter alia, plaintiff “[did] nothing until the last minute” to retain a professional process server). Here, the Government failed to engage a professional process service firm until only 21 days of the 120-day period remained.

In addition, rather than dispatching professional process servers to attempt service at multiple addresses, the Government attempted service at only a single address for each of the Defendants. The Government sent a professional process server to attempt service on Leroy Rodrigue at an address on 85th Terrace, where the resident had no knowledge of the Defendant. See Affidavit of Diligent Search and Inquiry. For whatever reason, the Government elected not to send a process server to the address on 156th Place in Miami — the address that the Florida Department of Highway Safety & Motor Vehicles had identified as Leroy Rodrigue’s most recent address-of-record. See Carpió Declaration ¶ 7. Nor did the Government attempt personal service on Leroy Rodrigue at any other address. The Government made no additional inquiries and took no further action to locate or serve Leroy Rodrigue in the three days remaining before the 120-day period for service of process ended on September 18, 2008. See United States v. Gen’l Int’l Mktg. Group, 14 CIT at 549, 742 F.Supp. at 1176 (finding no good cause in light of, inter alia, “the lack of any further attempt in the eleven days remaining” in the 120-day period, following a brief failed attempt by professional process server).

The Government’s efforts to deploy a professional process server to serve Ronald Rodrigue were, if anything, even more unimpressive. As with Leroy Rodrigue, rather than instructing the professional process server to try multiple addresses in the Government’s possession, the Government instead directed the process server to attempt to serve Ronald Rodrigue at only one address. That address was the address on Buffalo Way, which the Florida Department of Highway Safety & Motor Vehicles had clearly identified as Ronald Rodrigue’s prior address. See Carpió Declaration ¶ 8.

Moreover, as with Leroy Rodrigue, after attempts to serve Ronald Rodrigue at the indicated address failed, the Government simply sat on its hands for the remainder of the 120-day period, as the sand continued to trickle through the hourglass. Incredibly, for whatever reason, the Government elected not to send a process server to the address on Bamboo Palm Way — the address that the Florida Department of Highway Safety & Motor Vehicles had identified as Ronald Rodrigue’s most recent address-of-record, and, in fact, the address at which Ronald Rodrigue was eventually served, in late February of this year. See Carpió Declaration ¶ 8; Audio Recording of Hearing at 00:06:54-00:06:59, 01:01:35-01:02:19, 01:03:38-01:04:27, 01:06:19-01:06:25, 02:29:24-02:29:34, 02:30:00-02:30:59. Nor did the Government attempt personal service on Ronald Rodrigue at any other address. The Government made no additional inquiries and took no further action to locate or serve Ronald Rodrigue in the five days remaining before the 120-day period for service of process ended on September 18, 2008. See United States v. Gen’l Int’l Mktg. Group, 14 CIT at 549, 742 F.Supp. at 1176 (cited above).

It is no excuse to say — as the Government suggested at the hearing on the pending motions — that the Government was ambivalent about and lacked confidence in the addresses that it had for the two Defendants. See, e.g., Audio Recording of Hearing at 1:07:59-1:08:15, 3:57:54-3:57:59, 04:24:54-04:24:56. In such a situation, a diligent plaintiff exerting “meticulous efforts” to accomplish proper service within the 120-day period would have dispatched professional process servers to all known potential addresses in its possession, and, further, would have updated its research and undertaken additional research to identify any other potential addresses, to locate the missing defendants.

In contrast, here (as discussed above) the Government contented itself with sending professional process servers to a single address for each of the Defendants — and in neither case was it the address that the Florida Department of Highway Safety & Motor Vehicles had identified as the respective Defendant’s most recent address-of-record. See Affidavit of Diligent Search and Inquiry; Affidavit of Non-Service; Carpio Declaration ¶¶ 7-8. Moreover, the Government never sought updated contact information from that Florida agency, and instead continued to rely on addresses that the agency had provided some eight months before the September 18, 2008 deadline for service of process. See Audio Recording of Hearing at 00:19:55-00:20:10, 02:47:20-02:48:05 (stating that report of Florida Department of Highway Safety & Motor Vehicles is dated January 22, 2008). Finally, the Government failed to undertake any additional research to use other sources to identify other potential addresses for the Defendants. And for at least the last three days of the 120-day period, the Government did absolutely nothing— nothing whatsoever — to locate or effect service on the two Defendants.

The record of action — and inaction- — outlined above does not portray the Government as a plaintiff intent on diligently seeking to effect proper service of process on the Defendants in order to ensure the viability of its case, ever-mindful that the 120-day period for service of process was a ticking “time bomb” with the potential to “mark the death of the action.” See Braxton, 817 F.2d at 241 (quotation omitted); United States v. Gen’l Int’l Mktg. Group, 14 CIT at 548, 742 F.Supp. at 1176. The Government simply has not shown “good cause” for its failure to serve the Defendants within the 120-day period following the filing of its Complaint in this matter. Nor can it do so. The Government therefore is not entitled to an extension of time to effect service of process.

2. Extension of Time Absent Good Cause, As a Matter of Discretion

Under USCIT Rule 4«) — like Rule 4(m) of the Federal Rules of Civil Procedure — a court may, in its discretion, grant an extension of time to effect service even in the absence of good cause. See Henderson v. United States, 517 U.S. 654, 662-63, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (citing Fed.R.Civ.P. 4(m), Advisory Committee Note, 1993 Amendments). However, the Government failed to seek such an extension here. See PL’s Motion for Extension of Time (arguing only that Government has shown “good cause” for failure to serve within 120-day period; making no argument that, in the alternative, extension should be granted as a matter of court’s discretion); PL’s Motion for Service by Publication (same).

In any event, even had the Government argued that it should be granted a discretionary extension in this case, that request would have been denied. Factors that courts have considered in determining whether to extend the time for service of process even in the absence of a showing of good cause include whether “the statute of limitations would bar the refiled action”; whether “the defendant is evading service or concealed] a defect in attempted service”; whether the defendant had actual notice of the complaint; whether the defendant would be prejudiced by the extension of time; whether service of process was eventually achieved, and, if so, when; and whether the plaintiff sought a timely extension of time. As outlined below, none of these factors militates in favor of an extension of time in this case.

The relevant Advisory Committee Note expressly identifies two factors that may justify the grant of an extension of time for service of process notwithstanding the absence of good cause:

Relief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service.

Fed.R.Civ.P. 4(m), Advisory Committee Note, 1993 Amendments (emphases added).

In the instant case, because the statute of limitations expired with the filing of the Complaint, denying the requested extensions of time will severely prejudice the Government, because the statute of limitations will bar the Government from refiling. But the Government has no one but itself to blame for that fact.

The Government has not argued, and there is nothing in the record to suggest, that anything prevented the Government from commencing this action well before the eleventh hour and fifty-ninth minute. And, by filing its Complaint at the last possible moment, the Government — in essence — “assumed the risk” of entirely forfeiting its cause of action if it failed to effect proper service of process within 120 days. See, e.g., United States v. Gen’l Int'l Mktg. Group, 14 CIT at 548, 742 F.Supp. at 1176 (noting that, especially where statute of limitations has expired, plaintiff must exert “such efforts at service as are consistent with a recognition that 120 days may otherwise mark the death of the action”); Tuke v. United States, 76 F.3d at 156 (Easterbrook, J.) (warning that “[a]n attorney who files suit when the statute of limitations is about to expire must take special care to achieve timely service of process, because a slip-up is fatal”).

Faced with that reality, one reasonably would have expected the Government to demonstrate uber-diligence in attempting timely service of process on the two Defendants. Instead, the Government’s actions here were careless, dilatory, and halfhearted. As the Second Circuit Court of Appeals emphasized in its seminal opinion in Zapata:

It is obvious that any defendant would be harmed by a generous extension of the service period beyond the limitations period for the action, especially if the defendant had no actual notice of the existence of the complaint until the service period had expired; and it is equally obvious that any plaintiff would suffer by having the complaint dismissed with prejudice on technical grounds — ■ this is no less true where the technical default was the result of pure neglect on the plaintiffs part. But ... no weighing of the prejudices between the two parties can ignore that the situation is the result of the plaintiff’s neglect.

Zapata v. City of New York, 502 F.3d 192, 198 (2d Cir.2007) (emphasis added).

Moreover, the Government’s neglect in this case has extended well beyond the 120-day period. The Government did not effect service of process on Ronald Rodrigue until February 25, 2009 — more than five months after the 120-day period had ended. And Leroy Rodrigue still has not been served, one full year after the end of the 120-day period. It is also telling that, from at least September 15, 2008 (three days before the end of the 120-day period) until sometime in late January 2009, the Government made no additional inquiries and took no further action to locate or serve either of the Defendants. In other words, for a period of more than four months, the Government did absolutely nothing in this matter, other than file the pending motions. In addition, even after the Government made the decision in late January 2009 to engage professional process servers to again attempt personal service on the Defendants, those attempts were inexplicably delayed until late February 2009. Moreover, the Government made no further efforts to locate or serve Leroy Rodrigue after February 27, 2009 — ■ either before the April 6, 2009 hearing in this matter, or since. Indeed, although the Government served Ronald Rodrigue, it never even asked him about the whereabouts of his son.

Under these circumstances, the fact that the statute of limitations would bar the Government from refiling would not weigh in favor of a discretionary extension of time in this action. See, e.g., Lepone-Dempsey v. Carroll County Commissioners, 476 F.3d 1277, 1282 (11th Cir.2007) (emphasizing that “the running of the statute of limitations ... does not require that the district court extend the time for service of process”); Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1133 (11th Cir.2005) (stating that “the running of the statute of limitations does not require that a district court extend the time for service of process”); Coleman v. Milwaukee Bd. of School Directors, 290 F.3d 932, 934 (7th Cir.2002) (Posner, J.) (noting that “the cases make clear that the fact that the balance of hardships favors the plaintiff does not require the ... judge to excuse the plaintiffs failure to serve the complaint and summons within the 120 days provided by the rule”); Petrucelli, 46 F.3d at 1306 (“We emphasize that the running of the statute of limitations does not require the district court to extend [the] time for service of process.”).

As a second possible factor justifying a discretionary extension of time (in addition to the first possible factor, the fact that the statute of limitations would bar the refiling of an action), the Advisory Committee Note cites the defendant’s evasion of service or concealment of a defect in service. See Fed.R.Civ.P. 4(m), Advisory Committee Note, 1993 Amendments (discretionary extension may be justified “if the defendant is evading service or conceals a defect in attempted service”). In the instant case, the Government said nothing about evasion or concealment in its motion papers. See PL’s Motion for Extension of Time; PL’s Motion for Service by Publication. But, at the hearing on the motions, the Government made several vague allusions to evasion. When pressed, however, the Government was unable to cite facts to substantiate that intimation, and the Government quickly backed down. See Audio Recording of Hearing at 2:28:21-2:28:28 (Government notes that it is not representing that Rodrigues are evading service), 4:24:43-4:24:53 (conceding that Government has “no legal basis” for claiming evasion); see generally id. at 00:26:58-00:27:08, 02:28:02-02:28:28, 03:24:57-03:25:06, 04:24:34-04:25:05.

The mere fact that a plaintiff experiences difficulty in effecting service of process does not mean that the defendant is guilty of evasion. The record here is devoid of any indication that Leroy Rodrigue is affirmatively evading service. Moreover, earlier this year the Government actually served Ronald Rodrigue at the very address that the Florida Department of Highway Safety & Motor Vehicles had provided to Customs as Ronald Rodrigue’s most recent address-of-record in early 2008 — an address at which the Government had not previously attempted personal service. And, as noted elsewhere, there is no reason to believe that Ronald Rodrigue could not have been timely served at that same address in September 2008 (or even earlier) if the Government had sent a professional process server to the address (rather than directing the process server to Ronald Rodrigue’s prior address).

In short, there is simply no evidence whatsoever to suggest that either of the two Defendants has engaged in any improper action to evade service of process. See, e.g., Bedgood v. Garcia, 2009 WL 1664131 *4 (M.D.Ala.2009) (emphasizing that “the fact that serving a defendant has proven to be a difficult and onerous task does not equate with a finding that a defendant is avoiding service”); id. at *3 (observing that “[i]t could well be that plaintiffs are looking in the wrong places for [the defendant] or that he has left the area for reasons unrelated to the plaintiffs’ suit. Absent some evidence of culpability, the court will not presume that [the defendant] is avoiding service simply because the plaintiffs have not located him.”) (quotation omitted); id. (noting that return of certified mail as “unclaimed” does not constitute evasion) (quotation omitted); Shuster v. Conley, 107 F.R.D. at 757 (noting that “[t]he fact that the defendant moved without leaving a forwarding address alone does not evidence an effort to conceal his whereabouts,” and does not constitute evasion of service); United States v. World Commodities, 32 CIT at -, 2008 WL 748677 *2, 4 (examining assertions of evasion in context of “good cause” analysis, and holding that “Customs’ vague allegations as to a single address change and difficulty in serving other pleadings ... cannot reasonably be viewed as evasion of service”). This factor thus would not weigh in favor of a discretionary extension of time in this case.

The third factor that some courts have considered in evaluating a request for a discretionary extension of time to effect service of process is whether the defendant had actual notice of the complaint within the 120-day period. In the case at bar, there is no evidence that either of the two Defendants had actual notice of the Complaint within that timeframe. Nor has the Government argued that either Defendant was on actual notice. The mere fact that mailings were not returned to the Government does not establish that those mailings ever reached the Defendants, or — even if they did — that the mailings were opened and read by the Defendants. Cf. United States v. Thorson, 806 F.2d 1061, 1065 (Fed.Cir.1986) (observing that “[misdelivery, delayed delivery, or nondelivery of mail unfortunately sometimes happens”). Further, there is no evidence that the one mailing that was returned to the Government had been opened, much less read by either of the Defendants. Accordingly, this factor too would weigh against a discretionary extension of time in this case.

The next factor — prejudice to the defendant — is the “flip side” of the first factor (discussed above), and is generally accorded great weight by the courts. While a defendant may not suffer prejudice if the time for service is extended where the statute of limitations has not yet run, the situation is very different in a case such as this. The Complaint here was filed on the day that the statute of limitations expired; and, 120 days later, the Defendants still had not been served with the Complaint. When the statute of limitations has expired and the defendant has no notice of the pendency of an action, the doctrine of repose counsels against extending the 120-day period for service of process, particularly where (as here) the plaintiff has been (to put it mildly) less than diligent in attempting to effect service within that timeframe. Cf. Petrucelli, 46 F.3d at 1306 n. 7 (emphasizing that rule governing extensions of time should not be interpreted so as to “defeat the purpose and bar of statutes of repose”). As Zapata explained:

It is obvious that any defendant would be harmed by a generous extension of the service period beyond the limitations period for the action, especially if the defendant had no actual notice of the existence of the complaint until the service period had expired; and it is equally obvious that any plaintiff would suffer by having the complaint dismissed with prejudice on technical grounds— this is no less true where the technical default was the result of pure neglect on the plaintiffs part. But ... no weighing of the prejudices between the two parties can ignore that the situation is the result of the plaintiff’s neglect.

Zapata, 502 F.3d at 198 (emphases added) (underscoring “the prejudice to the defendant that arises from the necessity of defending an action after both the original service period and the statute of limitations have passed before service”). In light of all the facts and circumstances, this factor weighs heavily against a discretionary extension of time here.

As to the length of time taken to actually effect service of process, this is most definitely not a case where service was effected within a matter of days, or even weeks, after the end of the 120-day period. Compare, e.g., Zapata, 502 F.3d at 194, 198-99 (affirming dismissal for failure to effect timely service, where service was made only four days after 120-day period ended); United States v. World Commodities, 32 CIT at -, 2008 WL 748677 *1, 3 (dismissing action, even though service was effected less than one month after 120-day period ended); McIsaac v. Ford, 193 F.Supp.2d at 382 (dismissing action, even though defendants were served mere two or three days after 120-day period ended). The Government did not effect service of process on Ronald Rodrigue until more than five months after the 120-day period had ended. And, a full year after the end of the 120-day period, Leroy Rodrigue still has not been served. In light of these facts, and other compelling evidence of the Government’s procrastination and lack of diligence, this factor also would weigh heavily against a discretionary extension of time.

Finally, although the Government asserts that it timely sought an extension of the 120-day period for service of process, the Government concedes that it did not seek to file that request until the last day before the 120-day period expired, and that it took no action to confirm that its motion had been docketed until late October or early November 2008, when it discovered that no motion had been received by the court. See n. 1, supra; Pl.’s Motion for Extension of Time (dated Sept. 17, 2008; not received until filed nunc pro tunc); Audio Recording of Hearing at 00:31:54-00:39:29, 03:30:31-03:32:11, 03:32:54-03:33:04, 03:35:00-03:35:29. And, even after the Government made that discovery, the Government did not take immediate action to cure the problem. See Audio Recording of Hearing at 03:32:40-03:32:50, 03:34:18-03:34:40, 03:35:29-03:40:14. Under such circumstances, the Government cannot claim much credit for assertedly being timely in seeking an extension of the 120-day period for service of process.

In short, the Government here asserted only that it had shown “good cause” justiiying an extension of the 120-day period for service of process, and failed to argue (either in its brief or at the hearing) that— even absent good cause — an extension of time would be warranted, as a matter of the court’s discretion. It makes little difference. For all the reasons outlined above, any such request would not have been granted.

B. The Government’s Motion for Service of Process by Publication

In addition to its request for two extensions of the 120-day period to effect service of process, the Government also seeks leave to effect service of process by publication. See generally Pl.’s Motion for Service by Publication. Because the Government failed to seek leave to serve by publication until the penultimate day of the 120-day period for service of process, the denial of the requested extensions of time effectively moots the Government’s motion for service by publication. See section II.A, supra (denying motions for extensions of time). As discussed below, however, even if the extensions of time were granted, the Government nevertheless would not be entitled to serve by publication, both because the sworn statement(s) that the Government submitted in support of its request are not legally sufficient under Florida law, and — even more fundamentally — because the Government failed to conduct the requisite “diligent search and inquiry” to attempt to determine the whereabouts of the Defendants, before resorting to service by publication.

1. The Facial Sufficiency of the Motion for Service of Process by Publication

The Government invokes USCIT Rule 4(d), which permits service upon an individual “pursuant to the law of the state in which service is effected, for the service of a summons in an action brought in the courts of general jurisdiction of the state,” by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where service is made.” USCIT R. 4(d)(1). The Government notes that the Florida statutes for constructive service of process provide for service by publication “[t]o enforce any ... debt owing by any party on whom process can be served within [the] state.” See Fla. Stat. §§ 49.011, 49.021 (2008).

The Government further acknowledges that Florida law requires — as a condition precedent to service by publication — that a plaintiff file a verified or sworn statement attesting, inter alia, “that the residence of the person [to be served] is[] either: (a) [u]nknown to the affiant; or (b) [i]n some state or country other than [Florida] ...; or (c) [i]n the state, but that he or she has been absent from the state for more than 60 days ..., or conceals himself or herself so that process cannot be personally served.” See PL’s Motion for Service by Publication at 3; Fla. Stat. § 49.041 (2008). However, none of the papers filed in support of the Government’s Motion for Service by Publication — the Carpió Declaration, the Affidavit of Diligent Search and Inquiry (executed by Ross Frew), or the Affidavit of Non-Service (executed by Brian S. Johns) — fulfills the requirement of Florida law quoted immediately above. Compare Fla. Stat. § 49.041(3) with Carpió Declaration; Affidavit of Diligent Search and Inquiry; and Affidavit of Non-Service. The Government’s papers are thus legally insufficient on their face.

As the Florida courts have consistently held, “because the lack of personal service implicates due process concerns, a plaintiff must strictly comply with the statutory requirements” for service of process by publication. Redfield Investments, A.V.V. v. Village of Pinecrest, 990 So.2d 1135, 1138-40 (Fla.Dist.Ct.App.2008) (holding affidavit legally insufficient on its face); see also, e.g., Levenson v. McCarty, 877 So.2d 818, 820 (Fla.Dist.Ct.App.2004) (stating that “Constructive service statutes are strictly construed against a plaintiff who seeks to obtain service of process under them”); Godsell v. United Guaranty Residential Ins., 923 So.2d 1209, 1213, 1215 (Fla.Dist.Ct.App.2006) (same; also holding affidavit legally insufficient on its face); Gans v. Heathgate-Sunflower Homeowners Ass’n, Inc., 593 So.2d 549, 552-53 (Fla.Dist.Ct.App.1992) (same; also holding affidavit legally insufficient on its face). The Florida courts have not hesitated to set aside judgments obtained through service by publication where the supporting affidavit did not strictly comply with the requirements of the statute.

In Godsell, for example, the court found that an affidavit had “a number of facial defects,” where the affidavit failed to state “whether the person [to be served] is over or under eighteen, [and] whether the address is unknown to the affiant,” and where the affidavit “omit[ted] any reference to the important fact of defendant’s Canadian residence.” See Godsell, 923 So.2d at 1215. The court therefore concluded that, “although the ‘diligent search and inquiry’ claim was contained in the affidavit, [the affidavit] was otherwise not in compliance with the statute.” Id.

Similarly, in Redfield Investments, the court found the affidavit legally insufficient on its face because many of the averments stated that an inquiry of a source had not “yet revealed an accurate or current forwarding address for the Defendant.” See Redfield Investments, 990 So.2d at 1139-40. The court held that, “[b]ecause constructive service by publication may not be utilized where personal service can be had, the use of such qualifying terminology, at a minimum, leaves open to question whether ... [the averments in the affidavit] are sufficient to constitute strict compliance with the service by publication statute.” Id. at 1140 (internal citation omitted).

To the same effect is Gans, 593 So.2d at 552-53. In Gans, the court underscored that “[i]t is a fundamental principle of law that a plaintiff must strictly comply with a service of process by publication statute,” and stated that “[a]n order of publication based on a sworn statement which does not comply with the statute fails to confer jurisdiction.” Id. at 552. The Gans court concluded that the affidavit in that case was defective, because it did not comply with the part of § 49.041 “which requires that the sworn statement set forth the residence of the defendant as particularly as is known to the affiant.” Id. at 552-53.

In the case at bar, the papers filed by the Government describe the measures taken to attempt to effect service of process on the Defendants as a “diligent search and inquiry,” and state that Ronald and Leroy Rodrigue are both over the age of 18. See Carpió Declaration; Affidavit of Diligent Search and Inquiry; Affidavit of Non-Service. The Government’s papers therefore satisfy the first two parts of section 49.041 of the Florida statutes. See Fla. Stat. § 49.041(1) & (2). However, the Government has failed to satisfy the requirements of section 49.041(3), which mandate that service by publication be supported by a sworn statement indicating “that the residence of [the person to be served] is, either:”

(a) Unknown to the affiant; or

(b) In some state or country other than [Florida], stating said residence if known; or

(c) In the state [of Florida], but that he or she has been absent from the state for more than 60 days next preceding the making of the sworn statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed defendant.

Fla. Stat. § 49.041(3). The absence of such a statement would be fatal to the Government’s Motion for Service by Publication, if that motion were not already moot. See Godsell, 923 So.2d at 1215 (holding service by publication void where, inter alia, affidavit failed to state “whether the address [of the person to be served] is unknown to the affiant”); see also, e.g., Redfield Investments, 990 So.2d at 1139-40; Gans, 593 So.2d at 552-53; cf. Demars v. Village of Sandalwood Lakes Homeowners Ass’n, Inc., 625 So.2d 1219, 1220-23 (Fla.Dist.Ct.App.1993) (where “bare bones” affidavit stated, inter alia, that “a diligent search and inquiry” had been made and that “Defendant’s place of residence is unknown,” holding that sworn statement in support of service by publication need only “parrot” or “track” the language of the statute; unnecessary for affiant to include specific facts demonstrating that a diligent search was undertaken).

2. The Substantive Merits of the Motion for Service of Process by Publication

Even assuming that the Government’s Motion for Service by Publication were not moot, and further assuming that the Government’s papers in support of that motion were not legally insufficient on their face (as set forth in section II.B.l above), the Government’s Motion for Service by Publication nevertheless would have to be denied, because the Government failed to undertake the requisite “diligent search and inquiry” to attempt to locate and personally serve the Defendants, before resorting to service of process by publication

“[P]ersonal service of process on a defendant is the usual and preferred method of serving a defendant with notice of an action.” Redfield Investments, 990 So.2d at 1188. Thus, service by publication is permitted only in exceptional cases, “when the plaintiff cannot effect personal service .... The determining factor is whether personal service ‘cannot be had.’ ” Gans, 593 So.2d at 551 (citation omitted); see also Godsell, 923 So.2d at 1213; Dor Cha, Inc. v. Hollingsworth, 876 So.2d 678, 680 (Fla.Dist.Ct.App.2004) (stating that “[a] party seeking to utilize service by publication must be able to show that personal service could not be made”); McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 830-31 (1926) (underscoring that “resort to constructive service by publication is predicated upon necessity, and, if personal service could be effected by the exercise of reasonable diligence, substituted service is unauthorized”).

As such, “court-ordered service by publication is appropriate only after the plaintiff has demonstrated ... that all of the statutory modes of service have been diligently exhausted without successful service and that all reasonable efforts to locate the defendant have failed.” Prudential Ins. Co. of Am. v. Holladay, 2008 WL 1925293 *3 (D.N.J.2008). Accordingly, even if the Government’s papers here had been determined to be sufficient on their face (which they were not), the court also would be obligated to determine whether the Government in fact actually conducted an adequate search. See Redfield Investments, 990 So.2d at 1138; Shepheard v. Deutsche Bank Trust Co. Americas, 922 So.2d 340, 343 (Fla.Dist.Ct.App.2006); Southeast and Associates, Inc. v. Fox Run Homeowners Ass’n, 704 So.2d 694, 696 (Fla.Dist.Ct.App.1997); Demars, 625 So.2d at 1224.

As the plaintiff and the party invoking the court’s jurisdiction, the Government bears the burden of establishing the legal sufficiency of its search before recourse to service of process by publication may be had. See Shepheard, 922 So.2d at 343; Demars, 625 So.2d at 1224. Specifically, before it may resort to service by publication, the Government must demonstrate that it “reasonably employed the knowledge at [its] command, made diligent inquiry and exerted an honest and conscientious effort appropriate to the circumstances to acquire the information necessary to effect personal service on the defendant,” but — in the end — was unable to do so. Wolfe v. Stevens, 965 So.2d 1257, 1259 (Fla.Dist.Ct.App.2007) (quoting McDaniel v. McElvy, 108 So. at 831).

In other words, the Government must demonstrate that, under the circumstances of the case, personal service of process is essentially impossible. See, e.g., Godsell, 923 So.2d at 1213 (emphasizing that “[service by publication may be used only when alternative service [i.e., service by any other means] cannot be effected”); Levenson v. McCarty, 877 So.2d at 820 (explaining that Florida law “is consistent with the common law in permitting service by publication only where personal service cannot be made”); Dor Cha, 876 So.2d at 680 (stating that “[a] party seeking to utilize service by publication must be able to show that personal service could not be made”).

As one court recently put it: “In determining whether a plaintiff has exercised ‘reasonable diligence’ [so as to justify resort to service by publication,] ... a court must ... see whether the plaintiff ‘took those steps a reasonable person who truly desired to give notice would have taken under the circumstances.’ ” Duarte v. Freeland, 2008 WL 683427 *1 (N.D.Cal.2008) (quotation omitted); see also Redfield Investments, 990 So.2d at 1139 (“ ‘Reasonable diligence [in a search to locate defendant for personal service, as a prerequisite for making service by publication] ... is an honest effort, and one appropriate to the circumstances, to ascertain whether actual notice [i.e., personal service] may be given, and, if so, to give it.’ ”) (quoting Levenson v. McCarty, 877 So.2d at 820); McDaniel v. McElvy, 108 So. at 832. The Government’s efforts here fail this stringent test.

Little more than a recitation of the bare facts is needed to establish the Government’s lack of diligence in seeking to effect service of process in this case. As detailed in section I above, in late January 2008, the Government obtained information on the most recent addresses-of-record for the two Defendants from the Florida Department of Highway Safety & Motor Vehicles — an address on 156th Place for Leroy Rodrigue, and an address on Bamboo Palm Way for Ronald Rodrigue. At the same time, the Government also received information on all prior addresses-of-record for both men.

On May 21, 2008, the Government filed its Complaint, and sent copies of the Corn-plaint and the waiver of service form to Leroy Rodrigue at the address on 156th Place, his most recent address-of-record. Inexplicably, however, the Government mailed the documents to Ronald Rodrigue at an address on Buffalo Way — one of Ronald Rodrigue’s prior addresses. The Government apparently compounded its error