AIG Specialty Insurance Company v. Iron Mountain Mines, Inc., et al.

Filing 13

ORDER granting 11 Motion for an order signed by Senior Judge William B. Shubb on 6/10/15. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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AIG SPECIALTY INSURANCE
COMPANY, an Illinois
corporation, as subrogee of
Global Loss Prevention, Inc.

CIV. NO. 2:15-00798 WBS DAD
ORDER

Plaintiff,

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v.
IRON MOUNTAIN MINES, INC. and
JOHN H. McKINLEY, as
Administrator of the Will and
Estate of Theodore W. Arman,
Deceased,
Defendants.
----oo0oo---Plaintiff AIG Specialty Insurance Company brought this
action under § 112(c)(2) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§
9601-9675, against defendants Iron Mountain Mines, Inc. (“IMMI”)
and John H. McKinley to seek recovery of costs incurred in
response to the releases and disposal of hazardous substance for

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which defendants were previously found liable.

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moves for an order permitting service on IMMI through the

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California Secretary of State.1

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Plaintiff now

(Docket No. 11.)

Federal Rules of Civil Procedure 4(h) and 4(e) allow

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service on a corporation in accordance with the law of the state

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where the district court is located or where service is made.

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Fed. R. Civ. P. 4(e)(1), (h).

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Code section 416.10, a summons may be served on a corporation by

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delivering it to the person designated as the agent for service

Under California Civil Procedure

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or to one of the corporation’s officers.

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416.10(a), (b).

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1702(a) provides that (1) if an agent has resigned, cannot be

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found, or has not been designated, and (2) if process cannot be

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served with reasonable diligence upon the designated agent or

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upon the corporation under sections 416.10(a) or (b), the court

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may issue an order permitting service by personal delivery to the

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Secretary of State.

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in the Ninth Circuit have applied the section 1702(a) exception.

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See, e.g., Accor Franchising N. Am v. Elohim Enter., Civ. No.

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2:12-762 GEB CKD, 2013 WL 310407, at *1 (E.D., Cal. Jan. 25,

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2013); Pension Trust Fund for Operating Eng’rs v. Kickin Enter.,

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Civ. No. 11:3685 JCS, 2012 WL 6711557, at *3-4 (N.D. Cal. Dec.

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20, 2012); Pence v. Union Fid. Mortg., Civ. No. 08-89 WQH JMA,

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2008 WL 5102242, at *1 (S.D. Cal. Dec. 2, 2008).

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However, California Corporations Code section

Cal. Corp. Code § 1702(a).

Section 1702(a) applies in this case.

Federal courts

First, IMMI’s

designated agent for process is believed to be deceased, (Clary
This motion was determined to be suitable for decision
without oral argument pursuant to Local Rule 230(g).
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Cal. Civ. Proc. Code §

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Decl. ¶ 4; Noelly Decl. ¶ 4), making service on this individual

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impossible.

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corporation.

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made several attempts to locate and serve those officers at the

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business’s address listed with the California Secretary of State.

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(See Clary Decl. Exs. A, C.)

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locate the entity or anyone affiliated with the entity.

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Decl. ¶2.)

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find a current address for IMMI and its agents by searching

Neither was plaintiff able to serve officers of the
On plaintiff’s behalf, First Legal Support Services

First Legal Support was unable to
(Clary

Plaintiff’s counsel Alan C. Nolley also attempted to

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various public and social networking databases and directories,

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but was unsuccessful.

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attempts, the court is satisfied that plaintiff has exercised

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reasonable diligence in attempting to serve IMMI’s agent and

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officers.

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(Nolley Decl. ¶3.)

Based on these

IT IS THEREFORE ORDERED that plaintiff’s motion for an

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order allowing service on IMMI through the Secretary of

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California be, and the same hereby is, GRANTED.

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IT IS FURTHER ORDERED that the hearing set for June 15,

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2015 be, and the same hereby is, VACATED.

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Dated:

June 10, 2015

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