Xerox Corporation v. Simply Smashing, Inc.

Filing 9

ORDER to SHOW CAUSE Why Clerk's Entry of Default Should Not be Vacated, signed by Magistrate Judge Stanley A Boone on 4/30/2013. (IT IS HEREBY ORDERED that, within ten (10) days from the date of service of this order, Plaintiff shall show cause why the Clerk's entry of default should not be vacated.)(Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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XEROX CORPORATION,

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Plaintiff,

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v.

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SIMPLY SMASHING, INC.,

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Case No. 1:13 -cv-00395-LJO-SAB
ORDER TO SHOW CAUSE WHY CLERK'S
ENTRY OF DEFAULT SHOULD NOT BE
VACATED
(ECF Nos. 7, 8)

Defendant.

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Plaintiff Xerox Corporation filed this breach of contract action against Defendant Simply

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Smashing on March 18, 2013. (ECF No. 1.) On April 1, 2013, Plaintiff filed a proof of service

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showing the summons was served on March 27, 2013. (ECF No. 6.) On April 23, 2013, Plaintiff

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filed a request for entry of default against Defendant Simply Smashing, Inc. (ECF No. 7.) On

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April 25, 2013, a Clerk's entry of default was filed. (ECF No. 8.)

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The Federal Rules of Civil Procedure provide for two ways to effectuate service on a

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corporation. Pursuant to Federal Rule of Civil Procedure 4(h), a corporation must be served "in

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a manner prescribed by Rule 4(e)(1) for serving an individual; or . . . by delivering a copy of the

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summons and of the complaint to an officer, a managing or general agent or any agent,

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authorized by appointment or by law to receive service of process. . . ." Rule 4(e)(1) provides

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that service may be effectuated by following the law of the state in which the service is to be

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made.
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Under California law service of a corporation may be made by service on the person

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designated as agent for service of process or "the president, chief executive officer, or other head

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of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant

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treasurer, a controller or chief financial officer, a general manager or a person authorized by the

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corporation to receive service of process." Cal.Code.Civ.P. §§ 416.10(a) and (b). Under either

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method, service of a corporation must be made on either the agent for service or "a representative

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so integrated with the organization that he will know what to do with the papers." Direct Mail

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Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988)

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(citations omitted).

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In this instance, Plaintiff's proof of service reflects that substituted service was effected

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by leaving a copy with Suzie Lavalle, whom Plaintiff describes as apparently in charge, at the

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business address, 40278 Oak Park Way, Oakhurst, California. The individual to be served is

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identified as Timothy R. Fruehe, Agent for Service. (Proof of Service of Summons 1, ECF No.

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6.) The Court takes judicial notice of the records of the California Secretary of State. According

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to the California Secretary of State Business Portal, the agent for service of process for

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Defendant is Gregory M. Chappol, 49430 Road 726 #F, Oakhurst, California.1

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Secretary of State Business Entity Detail, http://kepler.sos.ca.gov/ (last visited April 24, 2013).

California

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Rule 4 is flexible and should be liberally construed so long as it gives the party to be

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served sufficient notice of the complaint. Direct Mail Specialists, Inc., 840 F.2d at 688. Here, it

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is not clear that Plaintiff has properly executed service of process. The Court finds two issues

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with the proof of service. First, as discussed above, the individual to be served is not the agent

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for service identified on the California Secretary of State Business Portal, nor was the summons

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delivered to the address listed for the agent of service. Second, while the summons indicates that

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substituted service was effected, the summons was left at the business address with Susie

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Levalle, whom is identified as "apparently in charge." (ECF No. 6 at 1.)

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Service will generally be sufficient when made on "an individual who stands in such a
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Judicial notice may be taken “of court filings and other matters of public record.” Reyn’s Pasta Bella, LLC v. Visa
USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

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position as to render it fair, reasonable and just to imply authority on his part to receive service."

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Direct Mail Specialists, Inc., 840 F.2d at 688. While California law does provide for substitute

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service by leaving a copy of the summons with an individual apparently in charge of a business,

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Cal.Code.Civ.P. § 415.20(b), here it is not clear that Suzie Levalle was in a position of authority

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sufficient to imply proper service for the corporation.

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Based upon the information before the Court, it does not appear that the service of the

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complaint in this action substantially complied with the California or Federal Rules of Civil

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Procedure. Plaintiff is seeking default judgment based on Defendant's failure to file an answer to

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the complaint; however it is not clear to the Court that the service effected here provided

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sufficient notice to Defendant of this action. Based on the foregoing,

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IT IS HEREBY ORDERED that, within ten (10) days from the date of service of this
order, Plaintiff shall show cause why the Clerk's entry of default should not be vacated.

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IT IS SO ORDERED.

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Dated:
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April 30, 2013

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DEAC_Signature-END:

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_

UNITED STATES MAGISTRATE JUDGE
i1eed4

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