Seifert v. Werner

Filing 80

ORDER signed by Magistrate Judge Kimberly J. Mueller on 1/22/2009 ORDERING the 61 motion to dismiss is denied; this matter is referred to VDRP. The VDRP process shall be completed no later than 3/31/2009. The Clerk shall serve a copy of this order on the courts VDRP coordinator. Except for service by publication and submission to VDRP, this action is stayed. (cc VDRP)(Matson, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff attempted service on defendant both by personal service and substituted service under California Code of Civil Procedure § 415.40, which allows for service on a person outside of the state by sending a copy of the summons and complaint by first-class mail, postage prepaid, requiring return receipt. Defendant contends there is no evidence that postage was prepaid; however, the copy of the envelope plaintiff's counsel has provided shows postage paid. Even though service is deemed complete on the tenth day after mailing under section 415.40, 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA KATHLEEN SEIFERT, Plaintiff, vs. RICHARD WERNER, Defendant. / Defendant's motion to dismiss and a status conference came on regularly for hearing December 10, 2008. Kenneth Pratt appeared for plaintiff. Defendant Werner appeared telephonically in propria persona. Upon review of the documents in support and opposition, upon hearing the arguments of counsel, upon review of the court's file, and good cause appearing therefor, THE COURT FINDS AND ORDERS AS FOLLOWS: 1. The motion to dismiss is denied. Although defendant has not yet been properly served,1 the court finds plaintiff has made good faith efforts to timely effect service on defendant. ORDER No. CIV S-08-998 GEB KJM PS

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The court therefore declines to recommend dismissal for failure to serve summons within the 120 days allowed under Federal Rule of Civil Procedure 4(m). 2. Plaintiff has exhausted all means to serve defendant by the methods allowed under Federal Rule of Civil Procedure 4 and the state methods incorporated therein. The California Code of Civil Procedure allows for service by publication "if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that ... a cause of action exists against the party upom whom service is to be made...." The record here establishes that requirement. Within fifteen days, plaintiff shall submit a proposed order for service by publication. 3. The parties at the hearing agreed that this action is subject to arbitration and also agreed to referral to the court's Voluntary Dispute Resolution Program (VDRP) prior to referral to arbitration. Accordingly, this matter is referred to VDRP. The VDRP process shall be completed no later than March 31, 2009. The Clerk of Court shall serve a copy of this order on the court's VDRP coordinator. 4. In the event the VDRP process does not resolve the matter, this action is ordered to arbitration. The parties shall select a neutral arbitrator and proceed to arbitration in accordance with the attorney/client fee agreement. The parties shall advise the court when arbitration is completed. /////

California Code of Civil Procedure § 417.20 requires evidence satisfactory to the court establishing actual delivery to the person to be served. Because the receipt is marked "refused," there is no evidence the summons and complaint actually have been delivered to defendant. See generally Neadeau v. Foster, 129 Cal.App.3d 234 (1982) (receipt signed by person authorized to accept mail on behalf of defendant constitutes actual delivery); see also Bolkiah v. Superior Court, 74 Cal.App.4th 984, 1000-01 (1999) (while service by mail on defendant outside of state does not require executed acknowledgment of receipt, proof of service by mail on out-of-state defendant must strictly comply with section 417.20 requirement of evidence establishing actual delivery to the person to be served). 2

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5. Except for service by publication and submission to VDRP, this action is stayed. No responsive pleadings need be filed in the federal court action; rather, they will be filed in the arbitration. Because this matter is subject to arbitration, any further pleadings filed in federal court will be stricken. DATED: January 22, 2009.

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seifert.oah

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