Boulton et al v. U.S. Tax Lien Assoc.
Filing
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ORDER signed by District Judge Morrison C. England, Jr., on 8/7/17, ORDERING that USTLA's 29 Motion for Service by Publication is GRANTED. (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KERRY BOULTON, ANE MARIE LACY,
WILLIAM GAMBA, LUCA ANGELUCCI,
and JEREMY ANDREWS,
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Plaintiffs,
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v.
US TAX LIEN ASSOCIATION, LLC, a
Nevada Limited Liability Company;
SAEN HIGGINS, and STEVE
CLEMENTS,
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US TAX LIEN ASSOCIATION, LLC, a
Nevada Limited Liability Company; and
SAEN HIGGINS
Third-Party Plaintiffs,
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v.
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ORDER
Defendants.
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No. 2:15-cv-02384-MCE-AC
AMERICAN TRANSFER SERVICES,
INC., a Delaware corporation, and
REUBEN SANCHEZ,
Third-Party Defendants.
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Through this action, individual foreign investors (“Plaintiffs”) seek to recover from
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Defendant US Tax Lien Association and its principal, Saen Higgins (collectively
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“USTLA”) and others for alleged misrepresentation and unfair business practices relating
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to the Plaintiffs’ investment in tax lien certificates. Plaintiffs allege that in reliance upon
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purported statements by USTLA, Plaintiffs transferred money to American Transfer
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Services, Inc. (“ATSI”), a third-party vendor, to facilitate Plaintiffs’ investment in the tax
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lien certificates. Plaintiffs allege that ATSI then essentially absconded with Plaintiffs’
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funds. Plaintiffs thereafter commenced this action against USTLA, and USTLA
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subsequently filed a third-party complaint against ATSI and its principal, Reuben
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Sanchez (“Sanchez”), for fraud, indemnity, and contribution arising out of the Plaintiffs’
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claims. USTLA has thus far been unable to effectuate service on Third-Party Defendant
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ATSI. Presently before the Court is USTLA’s unopposed motion to serve ATSI by
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publication (“Mot. for Service by Pub.”). For the reasons set forth below, that motion is
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GRANTED.1
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Under Federal Rule of Civil Procedure 4(e), service upon an individual defendant
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may be effected in any judicial district of the United States pursuant to the law of the
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state in which the district court is located or in which service is effected. See Fed. R.
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Civ. P. 4(e)(1). Service by publication is permissible under California law in certain
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circumstances: “A summons may be served by publication if upon affidavit it appears to
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the satisfaction of the court in which the action is pending that the party to be served
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cannot with reasonable diligence be served in another manner specified in this article
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and that . . . A cause of action exists against the party upon whom service is to be made
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or he or she is a necessary or proper party to the action.” Cal. Code Civ. Proc.
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§ 415.50(a).
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Because oral argument would not be of material assistance, the Court ordered this matter
submitted on the briefing. E.D. Cal. Local Rule 230(g).
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“In determining whether a plaintiff has exercised ‘reasonable diligence’ for
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purposes of § 415.50(a), a court must examine the affidavit required by the statute to
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see whether the plaintiff ‘took those steps a reasonable person who truly desired to give
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notice would have taken under the circumstances.’” Duarte v. Freeland, C-05-2780
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EMC, 2008 WL 683427, at *1 (N.D. Cal. Mar. 7, 2008) (quoting Donel, Inc. v. Badalian,
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87 Cal. App. 3d 327, 333 (1978)); see also Watts v. Crawford, 10 Cal. 4th 743, 749 n.5
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(1995) (“The term ‘reasonable diligence’ . . . denotes a thorough, systematic
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investigation and inquiry conducted in good faith by the party or his agent or attorney.”).
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Due process concerns mandate that service by publication is appropriate “only as a last
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resort.” Donel, Inc., 87 Cal. App. 3d at 327; see also Mullane v. Cent. Hanover Bank &
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Trust Co., 339 U.S. 306, 314 (1950) (discussing due process and notice to a party).
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“Before allowing a plaintiff to resort to service by publication, the courts necessarily
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require him to show exhaustive attempts to locate the defendant, for it is generally
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recognized that service by publication rarely results in actual notice.” Watts, 10 Cal. 4th
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at 749. “The fact that a plaintiff has taken one or a few reasonable steps does not
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necessarily mean that ‘all myriad . . . avenues’ have been properly exhausted to warrant
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service by publication.” Duarte, 2008 WL 683427, at *1 (ellipsis in original) (quoting
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Donel, 87 Cal . App. 3d at 333). In Mullane, the Court noted that “in the case of persons
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missing or unknown, employment of an indirect and even a probably futile means of
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notification is all that the situation permits and creates no constitutional bar to a final
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decree foreclosing their rights.” 339 U.S. at 317.
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The Court is satisfied that USTLA has diligently attempted to serve ATSI and
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Sanchez, and that such service has been all but impossible. USTLA filed its Answer and
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Third-Party Complaint (“TPC”) on October 19, 2016, ECF No. 26, and summons was
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issued the following day, ECF No. 27. From October 20, 2016 to the date on which
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USTLA filed the present motion, it attempted to effect service on ATSI and/or Sanchez
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many times at no fewer than six different business and residential addresses. See Decl.
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of Teri T. Pham ISO Mot. for Service by Publication, ¶¶ 3-9; Decl of James J. Passmore
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ISO same, ¶¶ 3-9. Counsel’s declaration provides that USTLA has attempted to serve
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ATSI at the address listed as that of its registered agent on Delaware’s Secretary of
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State webpage, and by serving the Delaware Department of State, Division of
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Corporation. Id. at ¶¶ 4, 8-9. Neither attempt was successful. Id. USTLA also
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attempted to serve Sanchez at the business address associated with a domain name
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Sanchez had registered the month prior, at a second business address found online,
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and at a residence and yet another business address associated with Sanchez on the
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California Secretary of State website. Id. at ¶¶ 5-7. A declaration from the process
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server confirms these details and further provides that the process server made contact
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with individuals at many of the attempted service locations, none of whom could provide
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the location of Sanchez. See id. The Court is thus satisfied USTLA has exhausted its
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options and cannot with reasonable diligence effect service in any manner other than by
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publication.
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Further, it appears that a legitimate cause of action exists against ATSI and
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Sanchez for fraud, indemnity, and contribution. See TPC. Moreover, these general
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allegations provide further support to USTLA’s theory that ATSI and Sanchez are
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evading service.
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On these facts, service by publication is appropriate and USTLA’s motion is
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GRANTED.2 USTLA shall publish the Summons in a newspaper in the State of
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California most likely to give actual notice to ATSI and Sanchez, Cal. Code. Civ. Proc.
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§ 415.50(b). Publication shall be once a week for four successive weeks, Cal. Gov.
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Code § 6064, and shall begin not later than thirty (30) days from the date of electronic
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USTLA’s related Request for Judicial Notice is DENIED as moot. The Court need not, and did
not, rely on the docket or declaration in Case No. 3:15-cv-00462 (S.D. Cal.) in granting USTLA’s present
motion for publication by service.
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filing of this Order. A copy of the Summons, the Complaint, the TPC, and this Order
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shall be mailed to ATSI and/or Sanchez if a valid address is ascertained before
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expiration of the time prescribed above for publication of the summons.
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IT IS SO ORDERED.
Dated: August 7, 2017
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