ORDER DENYING PLAINTIFF’S MOTION FOR SERVICE OF THE COMPLAINT BY PUBLICATION The Secretary of the Department of Housing and Urban Development of the United States of America (“HUD”) brings this action to foreclose on a home equity conversion mortgage, executed by Leroy and Mary Fleming, secured by their property at 1016 East 229th Street, Bronx, NY 10466. Both mortgagors have passed away: Leroy Fleming on August 12, 2009, and his wife, Mary Fleming, on September 6, 2013. (Dkt. No. 5-1.) The Complaint lists as defendants the following: (1) The Estate of Mary Fleming; (2) “Unknown Heirs” of the Estate of Mary Fleming; (3) “John Doe” defendants, consisting of anyone occupying the property or who might have a claim on the property; (4) The IRS and New York State taxing authorities; and (5) The New York City Environmental Control Board and Parking Violations Bureau. In order to obtain a marketable title to the property after foreclosure, HUD seeks a judgment that “the defendants, or either or any them, subsequent to the filing of the Notice of Pendency of this action, and every person whose conveyance or encumbrance is subsequent or subsequently recorded, be forever barred and foreclosed of all right, claim, lien, interest, or equity of redemption in the mortgaged premises” and that “the mortgaged premises…may be decreed to be sold according to law.” (Dkt. No. 5, Complaint, 52.) By this motion, HUD seeks permission to serve the “Unknown Heirs” of the Estate of Mary Fleming by publication — specifically, by publishing something called a “warning order” in the New York Daily News, a paper chosen because of its proximity to the property, once a week for six consecutive weeks. HUD has neither demonstrated that service by publication is statutorily authorized, nor that its proposal for service by publication would be effective to give the right people notice even if it were authorized, nor convinced this court that Plaintiff should not be required to avail itself of New York State’s procedure for locating any missing heirs who might be out there. Accordingly, the motion for leave to serve by publication is DENIED. Discussion 28 U.S.C. §1655 permits a federal court to issue a “warning order” to “any defendants [who] cannot be served within the State” — referred to as “absent defendant[s]” — in a case involving a claim or lien on property located within the court’s district. 28 U.S.C. §1655. The warning order must be “ served on the absent defendants personally if practicable, wherever found, and also upon the person or persons in possession or charge of such property.” Id. The court may authorize service by publication only if giving actual notice is “not practicable.” Id.; see Bache Halsey Stuart Shields Inc. v. Garmaise, 519 F. Supp. 682, 686 (S.D.N.Y. 1981). If an absent defendant fails to appear or respond to service, whether made personally or by publication, “the court may proceed as if the absent defendant had been served with process in the State” and enter a default judgment. 28 U.S.C. §1655. After issuing a notice of intent to foreclose but prior to commencing this case, HUD has identified some of the individuals who would fall under the rubric of “Unknown Heirs of Mary Fleming.” According to HUD’s Affirmation of Due Diligence (Dkt. No. 6-2) Ms. Fleming’s living heirs1 are as follows: Roy Fleming Jr., Ms. Fleming’s son who resides at 2930 Thomas Road, Henderson, North Carolina 27537; Gina Moore, Ms. Fleming’s daughter, Ms. Fleming’s daughter, who resides at 74 Fox Hollow, Rennselaer, New York 12144; Lavon R. Dickson, Ms. Fleming’s grandson, who resides at 681 West 193rd Street, Apt. 6B, New York, New York 10040; Joseph H. Fleming, Ms. Fleming’s grandson, who resides at 818 Columbus Drive, Teaneck, New Jersey 07666; Lateefah Shariene Fleming, Ms. Fleming’s granddaughter, who resides at 60 Berkshire Place, Apt. 2, Hackensack, New Jersey 07601; and Terilyn Fleming, Ms. Fleming’s granddaughter, who resides at 141 River Mews Lane, Edgewater, New Jersey 07020. Obviously these individuals are no longer “Unknown Heirs” of Mary Fleming. They are her known heirs. And indeed, they were Mrs. Fleming’s known heirs at the outset of this lawsuit. However, HUD did not name them as defendants when it filed this action, and it has not asked to amend the complaint to name them. Therefore — and since they do not fall under any other class of named defendant in this lawsuit — these six individuals must be “Unknown Heirs.” And I must assume that HUD’s motion seeks to serve these six individuals by publication.2 As to these identified individuals, the motion for service by publication is DENIED. First of all, two of them — Ms. Moore and Mr. Dickson — live in New York and so can be served with process “within the State.” Fed. R. Civ. P. 4(k)(1)(A). They are, therefore, not “absent defendants” and HUD cannot avail itself of publication of §1655 warning order as to them. The other four defendants live outside of New York and so cannot be served “within the State,” as provided by §1655 (although the three New Jersey residents live within 100 miles of this District, and but for the express statutory limitation in §1655, they could be served with process in this action, see. Fed. R. Civ. P. 4(k)(1)(B)). However, HUD has the addresses of these five individuals, which precludes the publication of a §1655 warning order as to them. The statute is clear: persons who cannot be served with process “within the State” must be given actual notice of the order — not notice by publication — if that is practicable. Indeed, the statute says that the order “shall be served on the absent defendant personally if practicable, wherever found.” (Emphasis added). Because HUD knows the addresses of these five individuals, it is practicable to serve them by sending them a copy of the warning order via the United States Postal Service; they live in New Jersey and North Carolina, not on the moon. Therefore publication as to them is also out of the question. Finally, as to absent defendants Roy Fleming Jr., service by publication in the New York Daily News — a newspaper that does not circulate in North Carolina — is not reasonably calculated to reach him. That is an additional reason why HUD’s motion as directed to Mr. Fleming Jr. must be denied. This court has previously authorized service on absent defendants in papers as far-flung as the Times of India, Krishna v. Colgate Palmolive Co., No. 90-cv-4116 (CSH), 1992 WL 176633 (S.D.N.Y. July 14, 1992) — because India is where the absent defendants were located. Where the property is located is of little relevance unless the absent defendants can be found there. As to all of the above individuals, the statute does not authorize service of a warning order by publication. So what, exactly, is the point of this motion? HUD insists that there may be other “Unknown Heirs” (really “Unidentified Heirs”) out there. HUD’s counsel has spoken to just two of the six Identified Heirs (Roy Fleming, Jr. and Terilyn Fleming); he has not been able to talk to all the Known Heirs of Mary Fleming.3. (Dkt. No. 6-1, Manfredi Decl.
