Barnes-Boers v. Tozier

Filing 9

ORDER signed by Chief Judge Morrison C. England, Jr. on 8/27/2014 DENYING 5 Plaintiff's Application for an order for Publication of Summons; the hearing on plaintiff's application is therefore VACATED; plaintiff may file an amended application. (Reader, L)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

BECKY BARNES-BOERS,

12
13
14
15

No. 2:13-cv-01555-MCE-CMK

Plaintiff,
v.

ORDER

HAROLD D. TOZIER, in his individual
and representative capacity as Trustee,
Tozier Family Revocable Trust,

16

Defendant.

17
18

Presently before the Court is Plaintiff Becky Barnes-Boers’s (“Plaintiff”)

19

Application for an Order for Publication of Summons (ECF No. 5). Under Federal Rule

20

of Civil Procedure 4(e), service upon an individual defendant may be effected in any

21

judicial district of the United States pursuant to the law of the state in which the district

22

court is located or in which service is effected. See Fed. R. Civ. P. 4(e)(1). Under

23

California law, “[a] summons may be served by publication if upon affidavit it appears to

24

the satisfaction of the court in which the action is pending that the party to be served

25

cannot with reasonable diligence be served in another manner specified in this article

26

and that . . . [a] cause of action exists against the party upon whom service is to be

27

made or he or she is a necessary or proper party to the action.” Cal. Civ. Proc. Code

28

§ 415.50(a).
1

1

The affidavit supporting Plaintiff's current Application must include allegations,

2

based on personal knowledge of the underlying facts, that a cause of action exists

3

against this defendant, or that he is a necessary party to this action. See Sananikone v.

4

United States, 2:07-cv-01434 MCE-EFB, 2008 WL 5381690 (E.D. Cal. Dec. 16, 2008).

5

The declaration submitted by Plaintiff (ECF No. 5-1) fails in this regard, and her motion is

6

not saved by the fact there is a Complaint on file. See id.; Harris v. Cavasso, 68 Cal.

7

App. 3d 723, 726 (Ct. App. 1977).

8

Because Plaintiff’s Application (ECF No. 5) lacks a proper affidavit including the

9

requisite allegations, it is DENIED without prejudice.1 The September 4, 2014, hearing

10

on Plaintiff’s Application is therefore VACATED. Plaintiff may (but is not required to) file

11

an amended Application.2 In the alternative, if Plaintiff does not renew her Application,

12

she is ordered to show cause in writing why this action should not be dismissed without

13

prejudice pursuant to Federal Rule of Civil Procedure 4(m) and Local Rule 210(b). If

14

Plaintiff does not file an amended Application or a response to the order to show cause

15

within twenty (20) days of the electronic filing of this order, without further notice to the

16

parties, the denial of Plaintiff’s instant Application shall become final with no further leave

17

to amend and this action will be dismissed without prejudice.

18
19

IT IS SO ORDERED.
Dated: August 27, 2014

20
21
22
23
24
25
26
27
28

1

Although it does not reach the merits of Plaintiff’s Application, the Court questions whether
Plaintiff’s Proof of Service (ECF No. 5-4) undermines her attempt to establish reasonable diligence. It
appears that Plaintiff served a copy of her Application on counsel for defendant, Mark Emmett, Esq., yet
the declaration submitted in support of Plaintiff’s Application does not address whether Plaintiff attempted
to learn defendant's whereabouts or otherwise serve defendant by inquiry of Emmett (or otherwise identify
Emmett). See Johnson v. Vuong, 2014 WL 3853430, at *2 (E.D. Cal. Aug. 5, 2014) (explaining that “[a]
number of honest attempts to learn defendant's whereabouts or address by inquiry of relatives, friends,
and acquaintances, or of an employer [among other methods] are generally sufficient”) (internal citation
omitted); see also Watts v. Crawford, 896 P.2d 807, 811 (1995).
2

If Plaintiff renews her application, she is directed to notice her motion for a civil calendar in
accordance with Local Rule 230(b). The Court observes that Plaintiff’s initial Application, although filed in
October 2013, languished on the docket for almost ten months as she did not notice it for a hearing date.

2