United States of America v. 1.73 Acres of Land, More or Less, Situate in Tulare County, State of California et al

Filing 37

AMENDED APPLICATION AND ORDER FOR PUBLICATION signed by Magistrate Judge Michael J. Seng on 9/26/2011. (Yu, L)

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BENJAMIN B. WAGNER
United States Attorney
LYNN TRINKA ERNCE
Assistant U.S. Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Plaintiff,

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v.

CASE NO. 1:11-cv-01492 AWI MJS

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AMENDED APPLICATION AND
ORDER FOR PUBLICATION

1.73 ACRES OF LAND, MORE OR LESS,
SITUATE IN TULARE COUNTY, STATE OF
CALIFORNIA; RICK R. ALBA AND
PATRICIA J. ALBA, HUSBAND AND WIFE
AS JOINT TENANTS; ROSEDALE WATER
COMPANY, A CALIFORNIA CORPORATION;
SUCCESS DEVELOPMENT COMPANY, A
CALIFORNIA CORPORATION; SUCCESS
MUTUAL WATER COMPANY, A
CALIFORNIA CORPORATION; RANDALL
CARROLL; CARL ADAIR BROWN aka C.
ADAIR BROWN; TULARE COUNTY
TREASURER AND TAX COLLECTOR; and
UNKNOWN OWNERS,
Defendants.
On September 9, 2011, this Court entered an Order permitting the United States of America,

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plaintiff herein, to serve Unknown Owners and Success Development Company by publication.

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Docket 16. The United States has since attempted to mail court documents to defendant Success Mutual

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Water Company, including a Notice of Acknowledgment of Receipt of Notice of Condemnation, to the

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agent for service of process based on available information, but the mail was returned as undeliverable.

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The United States has additionally learned that Success Mutual Water Company may no longer exist as a

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Amended Application and Proposed Order For Publication

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legal entity. For these reasons, Success Mutual Water Company cannot be served by other means and the

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United States respectfully requests that the Court modify its Order of Publication to include Success

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Mutual Water Company in the list of defendants who can be served by publication in this action.

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Accordingly, the United States hereby applies for an amended order of publication as follows:

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1.

Rule 71.1(d)(3)(B) of the Federal Rules of Civil Procedure provides that, upon the filing

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of a Certificate for Service by Publication, defendants whose addresses cannot be determined after

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diligent inquiry within the state and unknown owners may be served by publication by a notice addressed

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to such defendants and/or to “Unknown Owners.”

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2.

Local Rule 171 (Fed. R. Civ. P. 83), Eastern District of California, provides that the Court

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shall designate by order the appropriate newspaper for publication upon the filing by counsel of a motion

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proposing the place and manner of such publication setting forth such information as the language to be

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published, the frequency of publication, the reasons underlying selection of the proposed vehicle of

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publication, and related matters;

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3.

Plaintiff proposes that publication be made as follows:
a.

Publication shall be made once a week for not less than three successive weeks

pursuant to Fed. R. Civ. P. 71.1(d)(3)(B);
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Service by publication is complete upon the date of the last publication. Proof of

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publication and mailing shall be made by certificate of plaintiff’s attorney, to which shall be attached a

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printed copy of the published notice with the names and dates of the newspaper marked thereon.

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c.

Publication shall be made in the TULARE ADVANCE-REGISTER, a newspaper

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of general circulation, printed and published in the City of Visalia, County of Tulare, which newspaper

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has been adjudged a newspaper of general circulation within the County of Tulare, by the Superior Court

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of the County of Tulare, State of California;

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d.

The publication is to be addressed to: Success Development Company, a

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California corporation, whose address cannot be determined after diligent inquiry within the state and

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which is believed to have been dissolved in 1951; Success Mutual Water Company, a California

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corporation, whose address cannot be determined after diligent inquiry within the state and which is

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believed to have been dissolved prior to this action; and “Unknown Owners.”

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Amended Application and Proposed Order For Publication

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Additionally, said publication is to include the following:

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(1)

The Court, title and number of the action;

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(2)

That the action is to condemn the property;

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(3)

A description of the property sufficient for its identification;

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(4)

The interest to be taken;

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(5)

The authority for the taking;

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(6)

The uses for which the property is to be taken;

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(7)

That the defendant may serve upon the plaintiff’s attorney an answer within 20

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days after service of the notice, and that failure to do so constitutes a consent to the

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taking and to the authority of the court to proceed to hear the action and to fix the

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compensation; and
(8)

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The name and address of the attorney for the plaintiff where the attorney may be
served, and the telephone number of the attorney.

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DATED: September 20, 2011

BENJAMIN B. WAGNER
United States Attorney

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By:

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/s/ Lynn Trinka Ernce
LYNN TRINKA ERNCE
Assistant United States Attorney

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ORDER

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IT IS SO ORDERED.

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Dated:

September 26, 2011

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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DEAC_Signature-END:

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Amended Application and Proposed Order For Publication

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