Motion for Leave to Serve by Publication — OTO Analytics v. Benworth (D.E. 74) (N.D. Cal. No. 3:24-cv-03975)

Record facts

U.S. District Court for the District of Puerto Rico · No. 3:23-cv-01034-GMM · Doc. 74 · 2023-07-13 · Docket on CourtListener

Full text

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF PUERTO RICO 
 
OTO ANALYTICS, LLC, 
 
Plaintiff, 
 
v. 
 
BENWORTH CAPITAL PARTNERS PR 
LLC, BENWORTH CAPITAL PARTNERS 
LLC, BERNARDO NAVARRO and 
CLAUDIA NAVARRO, 
 
Defendants. 
§ 
§ 
§ 
§ 
§ 
§ 
§ 
§ 
§ 
§ 
§ 
 
 
Civil Action No. 23-01034 
 
 
 
 
  
 
PLAINTIFF WOMPLY’S MOTION FOR LEAVE TO SERVE BY PUBLICATION 
DEFENDANTS BERNARDO NAVARRO AND CLAUDIA NAVARRO 
 
 
Alexander L. Cheney (admitted pro hac vice) 
Willkie Farr & Gallagher LLP 
One Front Street  
San Francisco, CA 94111 
(415) 858-7400 
acheney@willkie.com 
 
Joshua S. Levy (admitted pro hac vice) 
Willkie Farr & Gallagher LLP 
1875 K Street, N.W. 
Washington, D.C. 20006 
(202) 303-1000 
jlevy@willkie.com 
 
 
Alejandro J. Cepeda Diaz 
USDC-PR 222110 
McConnell Valdés LLC 
270 Muñoz Rivera Ave. 
Hato Rey PR 00918 
Tel: (787) 250-5637 
Email: ajc@mcvpr.com 
 
 
 
 
 
 
 
 
 
 
 
 
Attorneys for Plaintiff Oto Analytics, LLC 
 
July 13, 2023 
 
 
 
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TABLE OF CONTENTS 
TABLE OF AUTHORITIES ....................................................................................................... ii 
PRELIMINARY STATEMENT ..................................................................................................1 
RELEVANT BACKGROUND .....................................................................................................2 
A. 
Womply Commences This Action Because The Navarros Fraudulently 
Transferred Assets To Puerto Rico To Avoid Paying Womply. .............................2 
B. 
The Navarros’ Actual Knowledge Of This Action ..................................................4 
C. 
The Navarros Refuse To Accept Service. ................................................................5 
D. 
Womply’s Diligent Efforts To Serve The Navarros In Puerto Rico And 
Florida ......................................................................................................................5 
E. 
This Court Extends Womply’s Time To Effect Service. .........................................6 
F. 
Womply’s Efforts To Identify The Navarros’ Puerto Rico Home Address ............6 
G. 
Womply’s Continuing Efforts To Seek To Serve The Navarros In Puerto 
Rico And Florida......................................................................................................8 
ARGUMENT ................................................................................................................................11 
I. 
THIS COURT SHOULD GRANT PLAINTIFF WOMPLY LEAVE TO SERVE 
THE NAVARROS BY PUBLICATION...........................................................................11 
II. 
THIS COURT SHOULD EXTEND WOMPLY’S TIME TO SERVE THE 
NAVARROS 
SO 
THAT 
SERVICE 
BY 
PUBLICATION 
CAN 
BE 
ACCOMPLISHED. ...........................................................................................................14 
III. 
WOMPLY RESERVES THE RIGHT TO SEEK COSTS AND FEES 
ASSOCIATED WITH SERVICE BY PUBLICATION. ..................................................15 
CONCLUSION ............................................................................................................................15 
CERTIFICATE OF SERVICE ..................................................................................................17 
 
 
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ii 
TABLE OF AUTHORITIES 
Page(s) 
Cases 
Bautista Cayman Asset Co. v. Las Casitas Oasis, Inc., 
2017 WL 7362732 (D.P.R. June 20, 2017)..............................................................................12 
Calderón Serra v. Banco Santander P.R., 
747 F.3d 1 (1st Cir. 2014) ........................................................................................2, 11, 12, 13 
Farb v. Perez-Riera, 
293 F.R.D. 77 (D.P.R. 2013) ...................................................................................................15 
Hasebrouck v. Great Lengths Int’l, 
2008 WL 11502476 (D.P.R. Mar. 27, 2008) ...........................................................................12 
Lanzo Llanos v. Banco de la Vivienda, 
133 D.P.R. 507 (1993) .......................................................................................................11, 12 
Live Well Fin., Inc. v. Estate of Santana Martinez, 
2020 WL 12188413 (D.P.R. Jan. 14, 2020).............................................................................14 
Martinez-Alicea v. LT’s Benjamin Records, Inc., 
2012 WL 13170563 (D.P.R. Dec. 19, 2012) ...............................................................11, 12, 13 
Moreno-Perez v. Toledo-Davila, 
266 F.R.D. 46 (D.P.R. 2010) ...................................................................................................14 
Pramco CV9, LLC v. Pesquera-Sanchez, 
2009 WL 1473713 (D.P.R. May 26, 2009)..............................................................................12 
Senior Loiza Corp. v. Vento Dev. Corp., 
760 F.2d 20 (1st Cir. 1985) ......................................................................................................13 
Rules 
Fed. R. Civ. P. 4(d) ........................................................................................................................15 
Fed. R. Civ. P. 4(e) ................................................................................................................1, 2, 11 
Fed. R. Civ. P. 4(m) ...................................................................................................................1, 14 
P.R. Law Ann. Tit. 32, app. III, R. 4.5...........................................................................................13 
P.R. Law Ann. Tit. 32, app. V, R. 4.6(a) ...............................................................................1, 2, 11 
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iii 
Other Authorities 
4B Charles S. Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 1137 
(4th ed. 2023) ...........................................................................................................................14 
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Pursuant to Federal Rules of Civil Procedure 4(e)(1) and 4(m) and Puerto Rico Rule of 
Civil Procedure 4.6, Plaintiff Oto Analytics, LLC (f/k/a Oto Analytics, Inc. d/b/a Womply) 
(“Womply”) respectfully requests that this Court (i) grant Womply leave to serve by publication 
Defendants Bernardo Navarro (“Mr. Navarro”) and Claudia Navarro (“Ms. Navarro”; together 
with Mr. Navarro, the “Navarros”), and (ii) extend Womply’s time to serve the Navarros by 
30 days after this Court rules on this Motion. 
PRELIMINARY STATEMENT 
Womply has been diligently trying to serve the Navarros for more than five months.  
Womply provided copies of the Complaint to the Navarros’ counsel and requested that they accept 
or waive service, but they refuse to do so.  Womply has thus been forced to engage process servers 
and has attempted to serve the Navarros 16 times at five different addresses—including three 
home addresses and two business addresses—but the Navarros are evading service. 
After months of searching public records across three different jurisdictions, Womply 
finally tracked down the address for the Navarros’ residence in Puerto Rico, which is owned by a 
generically named limited liability company.  The Navarros’ home is located in an exclusive resort 
area in Dorado, Puerto Rico, which requires visitors to be escorted by security through three 
checkpoints to reach any specific address.  Security at the resort refuses to permit Womply’s 
process servers to access the Navarros’ home.  In addition, Mr. Navarro’s father represented to 
one of Womply’s process servers that the Navarros are in Europe through the end of July, which, 
if true, would make serving them personally in a timely manner impossible.  Womply has asked 
the Navarros’ respective counsel to confirm whether the Navarros are in fact in Europe, but they 
refuse to respond.   In short, the Navarros are frustrating this Court’s Orders by making it 
impossible to effect service “personally” or at their “dwelling or usual place of abode” during the 
applicable time period.  Fed. R. Civ. P. 4(e)(2).   
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Puerto Rico law, which applies under Federal Rule of Civil Procedure 4(e)(1), does not 
permit Defendants to avoid service in this way.  It expressly authorizes service by publication 
where, as here, “the person to be served is . . . in Puerto Rico [but] could not be located after 
reasonable diligence or is hiding to avoid being served.”  P.R. Law Ann. Tit. 32, app. V, R. 4.6(a).  
As the accompanying ten declarations and 33 exhibits show in detail, Womply has undertaken 
extraordinary efforts to effect service and its claims have a strong factual foundation.  Courts 
routinely permit service by publication based on far less.  See, e.g., Calderón Serra v. Banco 
Santander P.R., 747 F.3d 1, 8–9 (1st Cir. 2014) (affirming service by publication based on a single 
affidavit). 
Accordingly, this Court should grant Womply leave to serve the Navarros by publication 
and grant Womply an extension of time to effectuate such service. 
RELEVANT BACKGROUND1 
A. 
Womply Commences This Action Because The Navarros Fraudulently 
Transferred Assets To Puerto Rico To Avoid Paying Womply. 
On January 24, 2023, Womply filed the Complaint (“Complaint” or “Compl.”; ECF 
No. 3) in the above-captioned action (the “Action”) against the Navarros, Benworth Capital 
Partners PR LLC (“Benworth PR”), and Benworth Capital Partners LLC (“Benworth FL”; 
collectively, “Defendants”), bringing claims for actual fraudulent transfer, constructive fraudulent 
transfer, and declaratory relief.  Womply alleges that Benworth FL contracted to use Womply’s 
services in connection with the Paycheck Protection Program (“PPP”), refused to pay for 
Womply’s services, and then fraudulently transferred  money to Benworth PR to prevent Womply 
from collecting its fees.  (Compl. ¶¶ 2, 7, 9, 19, 91–94, 125, 165.)   
                                                 
1 All references to “Ex.” refer to exhibits to the accompanying declaration of Joshua S. Levy 
(“Levy Decl.”). 
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  (Id. ¶¶ 15, 211, 213.) 
The final evidentiary hearing in the Arbitration took place at the JAMS offices in 
San Francisco, California, from March 20, 2023 to March 28, 2023.  (Levy Decl. ¶ 3.)  The 
arbitrator held closing arguments in the Arbitration on June 29, 2023.  (Id. ¶ 6.)  During the June 29 
argument, the arbitrator represented that he would issue a decision on the merits by September 15, 
2023.  (Ex. 3 (Arb. Hr’g Tr.) at 1761:11–25.) 
B. 
The Navarros’ Actual Knowledge Of This Action 
The Navarros are aware of and have participated in this Action.  Mr. Navarro owns 100% 
of and is the CEO of Benworth FL, which was validly served and moved to dismiss the Complaint.  
(Compl. ¶¶ 23–24, 84; ECF Nos. 21, 35, 55, 61.)  Mr. Navarro is personally represented by the 
same counsel as Benworth FL.  (ECF Nos. 18, 26, 41–44, 65.)  Ms. Navarro 
 
, which also was validly served and moved to dismiss the Complaint.  
(Compl. ¶¶ 24–25, 200; ECF Nos. 22, 34, 55, 61.)  Ms. Navarro is personally represented by the 
same counsel as Benworth PR.  (ECF Nos. 16, 25.)  Mr. Navarro 
 
.  (Compl. ¶¶ 11, 24, 197, 
200.)  The Navarros have jointly moved to quash service of the Complaint.  (ECF Nos. 37, 59, 64.)  
In support of their motion to quash, Mr. and Ms. Navarro each submitted a sworn declaration 
claiming detailed knowledge of docket filings in this Action and quoting from affidavits of service 
Womply filed in this Action.  (ECF Nos. 37-1, 37-2.) 
Mr. Navarro also is aware of this Action as a result of his participation in the Arbitration.  
Mr. Navarro attended every day of the Arbitration’s March 2023 evidentiary hearing in person as 
well as closing arguments, and 
 
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listed on the Navairns' drivers' licenses: 
. (Ex. 11; Ex. 8 (Perez Deel.) ,r 4.) He was unable to enter 
the apartment building but spoke to a woman standing on the balcony of Apartment 
101 who represented that she has lived in the apaitment for the past 30 years and did 
not know Mr. Navano or Ms. Navano. (Id.)
•
The Navarros' Florida Home. Womply identified 
J 
as the Nava1rns' last known Florida home address based on public
records searches showing that the Navanos pm-chased the prope1iy in their own names
in 2005 and, on May 12, 2021, transfened it to the Ocean Tenace Family Trnst, which
has the same address as Benwo1th FL. (Levy Deel. ,r 18; Ex. 12.) On April 25 and 26,
2023, a process server for Womply attempted to deliver the Summonses and Complaint
to 
(Ex. 13 (Brady Deel. B. Navairn) ,r,r 4-6; Ex. 14 (Brady Deel.
C. Navairn) ,r,r 4-6.) The process se1ver was unable to enter the house, which had a
gated enti·ance, but recorded the license plate of the Range Rover in the driveway,
which Womply identified as registered to Mr. Navairn's father. (Exs. 13-15.)
E.
This Court Extends Womply's Time To Effect Service.
On Mai·ch 30, 2023, the Navanos moved to quash Womply's se1vice of process. (ECF 
No. 37.) Womply opposed the motion and, in the alternative, requested additional time to se1ve 
the NavaiTos and leave to se1ve the NavaiTos by publication. (ECF Nos. 54, 69.) On June 13, 
2023, this Comt granted the Navairns' motion in pa1t, held that "dismissal is not necessarily 
waiTanted," and ordered Womply"to re-se1ve the summons upon co-defendants Bemai·do Navano 
and Claudia Navano within thirty (30) days of the issuance of this order." (ECF No. 70 (the 
"Order").) 
F.
Womply's Efforts To Identify The Navarros' Puerto Rico Home Address
Womply has identified the Navanos' home address as 
following an extensive investigation that included 
seai·ching credit repo1ts, Pue1to Rico cmporate records, Delawai·e co1porate records, real estate 
databases, vehicle registi·ations, and social media. (Levy Deel. ,r,r 24-37.) The Navanos made 
considerable effo1ts to conceal their ownership o 
The prope1ty is owned 
by 1 lDBE Holdings LLC, a Pue1to Rico limited liability company fo1med in December 2021. (Id.
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¶ 27; Exs. 31–32.)  11DBE Holdings LLC acquired the property in January 2022 by merging with 
North 112, LLC, a Delaware limited liability company.  (Levy Decl. ¶ 27; Exs. 20–21.)  
Mr. Navarro and Carlos Lamoutte, a Puerto Rico attorney, are listed as managers for 11DBE 
Holdings LLC.  (Exs. 22–23.)  The company address for 11DBE Holdings LLC is 221 Avenida 
Ponce De Léon, Suite 1401, San Juan, Puerto Rico 00917, which is the same address listed for 
Benworth PR.  (Id.; Ex. 12.) 
Public records confirm that the Navarros live at 
.  Credit header 
searches for Mr. Navarro and Ms. Navarro list their March 2023 address as 
 in 
Dorado, Puerto Rico.  (Exs. 17–18.)  In 2022 and 2023, Mr. Navarro registered four vehicles to 
: a 1990 Mercedes-Benz, a 2023 Vespa scooter, a 2021 Cadillac Escalade, 
and 2021 Jeep Wrangler.  (Levy Decl. ¶¶ 33–34.)  Three of these vehicles’ registrations were 
renewed to 
 in March 2023.  (Id.)  And, in March 2023, the Navarros filed 
sworn declarations in this Action representing that they were located in “Dorado, Puerto Rico.”  
(ECF Nos. 37-1, 37-2.)   
Postings on Mr. Navarro’s social media accounts also suggest that the Navarros live at 
.  In January 2022, Isaris Rosado Garcia charged Mr. Navarro on the 
mobile payment app Venmo for “Mantenimiento lote 11” from a telephone number associated 
with air conditioning installation and maintenance company Vazquez A/C.  (Levy Decl. ¶ 36; 
Ex. 24.)  Ms. Rosado Garcia lives in Vega Alta, Puerto Rico, which is approximately four miles 
from 
.  (Levy Decl. ¶ 36.)  In February 2022, Mr. Navarro paid Milton 
Miranda, a physical trainer based in Dorado, Puerto Rico, by Venmo.  (Id.; Ex. 24.)  In 
March 2022, Mr. Navarro paid Arturo Diaz, a tennis coach based in Dorado, Puerto Rico, by 
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Venmo.  (Id.)  In February 2023, Mr. Navarro geotagged a tweet in Dorado, Puerto Rico.  (Levy 
Decl. ¶ 37; Ex. 25.) 
G. 
Womply’s Continuing Efforts To Seek To Serve The Navarros In Puerto Rico 
And Florida 
After this Court’s June 13, 2023 Order, Womply again attempted to serve the Navarros an 
additional eight times at three different addresses. 
1. Womply’s Attempts To Personally Serve The Navarros At Their Address In 
Puerto Rico. 
Womply sought to serve the Navarros at their Puerto Rico home address of 
 
.  Dorado Beach Estates is an exclusive resort area in Dorado, 
Puerto Rico, with direct access to the Dorado Beach Resort.  (Ex. 26 (Figueroa Decl.) ¶ 3.)  Dorado 
Beach Estates has its own security and Dorado Beach Estates is under its own municipality.  (Id.)  
Therefore, it is only possible to access Dorado Beach Estates via security escort and security can 
exclude anyone from the area.  (Id.)  To access 
, guests must leave their 
car, pass through three security checkpoints, and then be escorted by security to the address by 
golf cart.  (Id.)   
On June 20, 2023, after coordinating with security at Dorado Beach Estates, a process 
server for Womply delivered the Summonses and Complaint to 
.  (Id. 
¶ 4.)  The process server knocked on the door and rang the doorbell for five minutes but no one 
answered and there was no movement inside the house.  (Id.)  Security then escorted the process 
server out of Dorado Beach Estates.  (Id.)   
The next day, the process server returned to Dorado Beach Estates, but security refused to 
escort her to 
.  (Id. ¶ 5.)  Instead, security called both Mr. Navarro and 
Ms. Navarro but did not receive an answer.  (Id.)  Security then called a handyman for the property 
who represented that the Navarros were not in Puerto Rico; he did not say where they were or 
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when they would return.  (Id.)  The Dorado Beach Estates administration and security refused to 
provide any additional information about the Navarros and would not permit Womply’s process 
server to access 
.  (Id. ¶¶ 5–6.)   
2. Womply’s Attempt To Personally Serve The Navarros At Their Last Known 
Address In Florida 
Womply continued to attempt to serve the Navarros at their last known address in Florida:  
. 
On June 16, 2023, a process server for Womply delivered the Summonses and Complaint 
to 
.  (Ex. 27 (July Brady Decl.) ¶ 3.)  The security gate was open, so the process 
server entered the property and knocked on the door.  (Id.)  Although a Range Rover registered to 
Gilberto Navarro, Mr. Navarro’s father, was parked in the driveway, no one answered the door.  
(Id.; Ex. 15.)  The process server waited outside the house and continued to knock for 
approximately 30 minutes but no one answered.  (Ex. 27 (July Brady Decl.) ¶ 3.) 
The next day, the process server returned to 
.  (Id. ¶ 4.)  Again, the security 
gate was open and Mr. Navarro’s father’s Range Rover was parked in the driveway, but no one 
answered when the process server knocked for approximately 30 minutes.  (Id.) 
On June 19, 2023, the process server again delivered the Summonses and Complaint to 
 
.  (Id. ¶ 5.)  The security gate was open, so the process server entered the property and 
knocked on the door for approximately 30 minutes.  (Id.)  There was a white Toyota parked in the 
driveway with Florida license plates and a dog inside the house, but no one answered the door.  
(Id.)    
On June 22, 2023, at 7:45 AM, the process server again went to 
.  (Id. 
¶ 6.)  The security gate was closed so he was unable to enter the property.  (Id.)  Although 
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Mr. Navarro’s father’s Range Rover was parked in the driveway, no one answered when the 
process server paged the callbox for approximately 15 minutes.  (Id.) 
At 2:00 PM the same day, the process server returned to 
.  (Id. ¶ 7.)  The 
security gate was open, and the process server entered the property, knocked on the door, and heard 
a dog barking inside the house.  (Id.)  A woman who appeared to be in her sixties answered the 
door.  (Id.)  She did not provide her name but said that the Navarros were not at the property; she 
called a man she identified as her husband and as Mr. Navarro’s father.  (Id.)  The man identified 
as Mr. Navarro’s father told the process server that the Navarros were traveling in Europe until the 
end of July.  (Id.)  He told the process server to bring the Summonses and Complaint to his office 
at 700 Biltmore Way, Suite C1, Coral Gables, FL 33134, and he would send copies to the Navarros.  
(Id.)  This is the same address as Benworth FL.  (Ex. 12.) 
The next day, the process server delivered the Summonses and Complaint to the man 
identified as Mr. Navarro’s father at Benworth FL, located at 700 Biltmore Way, Suite C1, Coral 
Gables, FL 33134.  (Ex. 27 (July Brady Decl.) ¶ 8.)  Mr. Navarro’s father accepted the documents 
and represented that he would provide them to the Navarros.  (Id.) 
3. Womply’s Attempt To Confirm If The Navarros Are In Europe 
On July 10, 2023, counsel for Womply sent emails to counsel for Mr. Navarro and counsel 
for Ms. Navarro, respectively, asking them to confirm whether the Navarros were in fact “in 
Europe until the end of the July,” as Mr. Navarro’s father claimed.  (Levy Decl. ¶¶ 12–13; Exs. 6–
7.)  Neither counsel responded.  (Id.) 
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ARGUMENT 
I. 
THIS COURT SHOULD GRANT PLAINTIFF WOMPLY LEAVE TO SERVE THE 
NAVARROS BY PUBLICATION. 
Under the Federal Rules of Civil Procedure, an individual is validly served by “following 
state law for serving a summons in an action brought in courts of general jurisdiction in the state 
where the district court is located where service is made.”  Fed. R. Civ. P. 4(e)(1).  Puerto Rico 
law allows for service by publication “[w]hen the person to be served is . . . in Puerto Rico [but] 
could not be located after reasonable diligence or is hiding to avoid being served.”  P.R. Law Ann. 
Tit. 32, app. V, R. 4.6(a).2  A motion for leave to serve by publication requires only (i) an “affidavit 
stating the efforts made to serve process,” and (ii) an affidavit or verified complaint that 
“establishes the existence of a claim that warrants relief against the person upon whom service is 
to be effected.”  Id.  Womply easily satisfies both requirements. 
Womply has submitted ten sworn declarations detailing its extensive efforts to serve the 
Navarros, including attempting service 16 times at five different addresses and untangling the 
Navarros’ shell companies across three jurisdictions (Delaware, Florida, and Puerto Rico) to 
finally uncover their home address in Dorado, Puerto Rico.  But security is preventing Womply’s 
process servers from accessing their home.  Womply even tracked down Mr. Navarro’s father who 
represented that he would provide copies of the Summonses and Complaint to the Navarros who 
are somewhere in Europe through the end of July.  As the Puerto Rico Supreme Court has held, 
the “reasonableness of the steps taken will depend on the particular circumstances of each case.”  
                                                 
2 Puerto Rico law is considered “state law” for purposes of Rule 4(e)(1).  See Calderón Serra, 747 
F.3d at 8; Martinez-Alicea v. LT’s Benjamin Records, Inc., 2012 WL 13170563, at *1 (D.P.R. 
Dec. 19, 2012).  
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Lanzo Llanos v. Banco de la Vivienda, 133 D.P.R. 507, 515 (1993).3  Here, Womply’s detailed 
declarations—which are based on first-hand knowledge, identify the date and time of each service 
attempt at each address, record the number of minutes for each service attempt, and recount 
conversations conducted in connection with attempts to effect service—are more than sufficient 
to “demonstrate that the plaintiff has made effective efforts to try to locate the defendant[s] and 
summon [them] personally, and that despite this diligence it has been impossible to locate [them].”  
Id. at 514.  Courts routinely permit service by publication based on far less.4 
For example, in Calderón Serra, “Plaintiffs sought service by publication for three 
defendants” under federal and Puerto Rico law.  747 F.3d at 8.  “To show their efforts at personal 
service, plaintiffs offered an affidavit from private investigator Andrés Amador.”  Id.  As to two 
defendants, “Amador averred that his efforts turned up a last known address but little current 
information beyond suggestions that each had left Puerto Rico.”  Id.  As to the third defendant, 
José Álvarez, “[h]e reported that Álvarez’s name was too common to produce workable leads, and 
records checks had proved unavailing.”  Id.  “The district court granted the motion” to serve by 
publication based on this affidavit, and the First Circuit found no error in that decision.  Id. 
Similarly, in Martinez-Alicea, the plaintiffs sought “service by publication pursuant to 
Puerto Rico law, as authorized by the Federal Rules.”  2012 WL 13170563, at *1 (citing Fed. R. 
                                                 
3 Pursuant to Local Civil Rule 5(c), Womply has requested a certified translation of the Lanzo 
Llanos decision and will publicly file it with the Court as soon as it is available. 
4 See, e.g., Pramco CV9, LLC v. Pesquera-Sanchez, 2009 WL 1473713, at *1 (D.P.R. May 26, 
2009) (“Plaintiff’s motion for service by publication was granted by this Court, and summons by 
publication were issued.”); Hasebrouck v. Great Lengths Int’l, 2008 WL 11502476, at *1 (D.P.R. 
Mar. 27, 2008) (“The Puerto Rico court authorized service by publication . . . .”).  Womply’s 
efforts to serve the Navarros bear no resemblance to Bautista Cayman Asset Co. v. Las Casitas 
Oasis, Inc., 2017 WL 7362732, at *1 (D.P.R. June 20, 2017), where the process server “does not 
provide the time when the visits were conducted,” and “the process server does not state that he 
actually attempted to visit the residence.” 
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Civ. P. 4(e)(1).)  The court held that such a motion required “an affidavit stating the steps taken” 
to locate defendants and a “verified complaint” or affidavit “justifying the granting of some relief 
against the person to be served.”  Id. (quoting P.R. Law Ann. Tit. 32, app. III, R. 4.5).5  “The 
motion for service by publication include[d] affidavits meeting both of these requirements.”  Id.  
Specifically, plaintiffs filed three brief declarations from process servers describing their efforts to 
serve defendants.  (Ex. 33.)  Based on these declarations, the court held that “the motion for service 
by publication is GRANTED.”  2012 WL 13170563, at *1 
Womply clearly has a claim against the Navarros that warrants relief.  Womply has verified 
its detailed Complaint through the sworn declaration of its CEO, Toby Scammell, which states: “I 
have read the complaint in the above-captioned action and believe that the facts alleged therein are 
true and correct based on my personal knowledge and information provided to me.”  (Ex. 28 
(July 2023 Scammell Decl.) ¶ 2.)  Because Mr. Scammell’s “intent to incorporate” the Complaint 
is “clearly stated,” his declaration verifies the Complaint as a matter of law.  Senior Loiza Corp. 
v. Vento Dev. Corp., 760 F.2d 20, 25 (1st Cir. 1985) (“Verification of a complaint may indeed be 
accomplished by reference in the affidavit . . . .”).  To further demonstrate the merits of its claims,  
Womply also submits the documents and testimony on which it relied to prepare and investigate 
the Complaint, including the sworn declaration of Womply’s CEO (Ex. 29), sworn deposition 
testimony of Mr. Navarro (Exs. 16, 30), and agreements between Benworth FL and Benworth PR 
(Exs. 31–32).  See Martinez-Alicea, 2012 WL 13170563, at *1 (granting “service by publication” 
based on three brief declarations); (Ex. 33).  In addition, the arbitrator in the Arbitration concluded 
that an 
 
                                                 
5 “Puerto Rico amended its Rules of Civil Procedure in 2009” but “the new Rule 4.6 largely mirrors 
the former Rule 4.5.”  Calderón Serra, 747 F.3d at 8 & n.7. 
Case 3:23-cv-01034-GMM     Document 74     Filed 07/13/23     Page 17 of 21

Case 3:23-cv-01034-GMM     Document 74     Filed 07/13/23     Page 18 of 21

 
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plaintiff additional time “to serve process . . . by publication”); Farb v. Perez-Riera, 293 F.R.D. 
77, 79 (D.P.R. 2013) (“grant[ing] Plaintiff an additional term of ten days to correctly serve Perez 
Riera through publication”). 
III. 
WOMPLY RESERVES THE RIGHT TO SEEK COSTS AND FEES ASSOCIATED 
WITH SERVICE BY PUBLICATION. 
Rule 4(d) imposes “a duty to avoid unnecessary expenses of serving the summons” on 
defendants and encourages defendants to waive service.  Fed. R. Civ. P. 4(d)(1); see also Fed. R. 
Civ. P. 4(d) advisory committee notes to 1993 amendment (“The aims of the provision are to 
eliminate the costs of service of a summons on many parties and to foster cooperation among 
adversaries and counsel.”).  If a defendant fails “to sign and return a waiver requested by a 
plaintiff,” then “the court must impose on the defendant: (A) the expenses later incurred in making 
service; and (B) the reasonable expenses, including attorney’s fees, of any motion required to 
collect those service expenses.”   Fed. R. Civ. P. 4(d)(2) (emphasis added). 
On June 13, 2023, Womply sent to waiver requests pursuant to Rule 4(d) to counsel for 
Mr. Navarro and Ms. Navarro, respectively.  (Levy Decl. ¶¶ 12–13 Exs. 6–7.).  Neither has 
responded.  (Id.)  Womply therefore reserves the right to seek all costs and fees associated with 
service by publication. 
CONCLUSION 
For the foregoing reasons, Womply respectfully requests that this Court (i) grant Womply 
leave to serve the Navarros by publication, and (ii) extend Womply’s time to serve the Navarros 
by 30 days after this Court rules on this Motion.  If the Navarros do not agree to waive service, 
pursuant to Rule 4(d)(2), Womply reserves the right to seek all expenses incurred in connection 
with making service by publication. 
Case 3:23-cv-01034-GMM     Document 74     Filed 07/13/23     Page 19 of 21

 
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Dated: July 13, 2023 
 
 
Of Counsel: 
 
Willkie Farr & Gallagher LLP 
 
By: Alexander L. Cheney___ 
 
Alexander L. Cheney (admitted pro hac vice) 
One Front Street  
San Francisco, CA 94111 
(415) 858-7400 
acheney@willkie.com 
 
Joshua S. Levy (admitted pro hac vice) 
1875 K Street, N.W. 
Washington, D.C. 20006 
(202) 303-1000 
jlevy@willkie.com 
 
 
 
 
 
 
 
Respectfully submitted, 
 
By: Alejandro J. Cepeda Diaz__ 
 
Alejandro J. Cepeda Diaz 
USDC-PR 222110 
McConnell Valdés LLC 
270 Muñoz Rivera Ave. 
Hato Rey PR 00918 
Tel: (787) 250-5637 
Email: ajc@mcvpr.com 
 
 
 
 
 
 
 
 
 
 
 
Attorneys for Plaintiff Oto Analytics, LLC 
 
 
 
 
 
Case 3:23-cv-01034-GMM     Document 74     Filed 07/13/23     Page 20 of 21

 
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CERTIFICATE OF SERVICE 
The undersigned certifies that on July 13, 2023, the foregoing document was filed with the 
Clerk of the Court using CM/ECF, which sent notices to all parties receiving notifications through 
the CM/ECF system. 
Dated: July 13, 2023  
 
 
 
By: /s/ Alejandro J. Cepeda Diaz 
Attorney for Plaintiff Oto Analytics, LLC 
 
 
 
Case 3:23-cv-01034-GMM     Document 74     Filed 07/13/23     Page 21 of 21

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