Miller v. Facebook, Inc. et al

Filing 74

Reply Memorandum re 70 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 41(b) filed by Facebook, Inc. (Gray, Thomas) (Filed on 9/2/2010) Modified on 9/3/2010 (wsn, COURT STAFF).

Miller v. Facebook, Inc. et al

Doc. 74

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I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] THOMAS J. GRAY (STATE BAR NO. 191411) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 Attorneys for Defendant FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DANIEL M. MILLER, Plaintiff, v. FACEBOOK, INC. and YAO WEI YEO, Defendants.

Case No. 3:10-CV-00264 (WHA) FACEBOOK, INC.'S REPLY IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 41(B) Date: Time: Court: Judge: September 16, 2010 8:00 A.M. Courtroom 9, 19th Floor Honorable William Alsup

FACEBOOK'S REPLY ISO MOT. TO DISMISS PURS. TO 41(B) 3:10-CV-00264 (WHA)

Dockets.Justia.com

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I.

INTRODUCTION This case should now be dismissed. The Court ordered Miller to serve Yeo by July 30,

2010, because absent Yeo's appearance, it is "unclear how plaintiff would be able to prove" his claims. What is clear is that Miller has not complied with this Court's order. In his opposition papers, Miller contorts California law and argues that as long as someone signs for a certified letter, process is effective. Under California law more is required. Specifically, Miller must submit evidence that Defendant Yeo actually received the summons and complaint. In his opposition papers, Miller relies on an incomplete, unsigned, outdated mailbox rental agreement and a certified mail receipt from a UPS store worker named "Alex" as evidence that the complaint was actually delivered to Defendant Yeo. None of Miller's "evidence," however, supports such a conclusion. Recognizing the failings of his "evidence," Miller seemingly blames Facebook for Yeo not appearing in the case and makes another plea for additional time to serve Yeo. Miller now has had nearly a year to serve Yeo. Yet he has failed to do so, despite the clear warnings from this Court. His complaint should be dismissed. II. ARGUMENT A. Miller Failed To Proffer Evidence Of Actual Delivery To Yeo

Miller incorrectly argues that he has complied with C.C.P. § 415.40, which authorizes him to serve out-of-state defendant Yeo by certified mail. Merely placing the summons and complaint in the mail, however, is not enough. Miller must proffer evidence "establishing actual delivery to the person to be served." Cal. Code Civ. Proc. 417.20. Evidence of delivery to just anyone is not enough. The "plaintiff must provide separate evidence establishing the authority of the person who signed the return receipt on defendant's behalf." Taylor-Rush v. Multitech, 217 Cal. App. 3d 103, 110 (1990) citing Neadeau v. Foster, 129 Cal. App. 3d 234, 237-238 (1982); see also Malletier v. Pierce, No. 2:07-CV-2732-JAM-DAD, 2008 WL 4330455 *3 (E.D.Cal. Sep. 19, 2008) ("finding delivery of summons to UPS Store mailbox ineffective service on responsible party"). These "statutory requirements . . . are to be strictly construed." Taylor-Rush, 217 Cal. App. 3d at 111. Based on these principles, Miller's attempted service on Yeo falls far short. -1FACEBOOK'S REPLY ISO MOT. TO DISMISS PURS. TO 41(B) 3:10-CV-00264 (WHA)

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The only evidence of actual delivery Miller offers is: a) an incomplete copy of a "Mailbox Service Agreement," ("MSA") purportedly between Yeo and UPS, but which is not signed by Yeo (Dkt. No. 72-3 at 1); b) an incomplete copy of an "Application for Delivery of Mail Through Agent," which may or may not contain Yeo's signature and which is not signed by the "agent" (id. at 2); and, c) a receipt signed by "Alex," who Miller argues is an employee at UPS in New York where Yeo may have rented a mailbox. Dkt. No. 72-5. None of these documents, by themselves or taken together, establishes that the summons and complaint were actually delivered to Yeo. Nor do they establish that "Alex" was acting as Yeo's agent and was authorized to "accept" these papers on Yeo's behalf. See Malletier, 2008 WL 4330455 *2 citing Dill v. Berquist Constr. Co., 24 Cal. App. 4th 1426, 1438, (1994) ("Agents are not fungible. A person who is authorized to perform one function on behalf of a principal may have no authority at all regarding a different function"). Miller admits that the copy of the MSA is incomplete. Opp. at 5. It is impossible to discern from the document just how many pages are missing, but it is clear that Yeo's signature does not appear on it. Id. At best, the incomplete documents that Miller offers show that Yeo may have rented a mailbox at a UPS store a few months before Miller sent his papers and that "Alex" and other employees at UPS may have been permitted to put such documents in Yeo's mailbox, if Yeo was still a customer at the time. Dill, 24 Cal. App. 4th at 1438. This falls far short of Miller's requirement to show that Yeo actually received the summons and complaint. Furthermore, even assuming Yeo signed this particular MSA, nothing in the agreement suggests that Yeo authorized UPS or Alex to accept legal service of process on his behalf. Id. Quite the contrary, the MSA explicitly requires the customer ­ here, Yeo ­ to complete "any required acknowledgement form relating to service of process." Dkt. No. 72-3 at 1, ¶ 3. Miller has not proffered any such "acknowledgment." Thus, to the extent Yeo entered into the MSA at all, the agreement itself requires express authorization for UPS to accept service of process, which Miller has not produced. Miller unfittingly likens Alex at UPS to the Neadeau defendant's office manager. Opp. at 6. In Neadeau, the court found that the plaintiff had met his evidentiary burden by showing that -2FACEBOOK'S REPLY ISO MOT. TO DISMISS PURS. TO 41(B) 5:10-CV-00264 (WA)

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the summons and complaint had been actually delivered to the defendant because the papers were received by the defendant's office manager and that the manager was authorized to accept delivery of the defendant's mail. Neadeau, 129 Cal. App. 3d at 237. Alex is not Yeo's office manager and was not authorized to "accept" Yeo's mail. At most Alex was authorized to receive mail addressed to defendant Yeo and place such mail in Yeo's mailbox. This is a far cry from the authorization provided to the defendant's office manager in the Neadeau case. See Dill, 24 Cal. App. 4th at 1438; Malletier, 2008 WL 2008 WL 4330455 *2-3. Presumably, the office manager also was authorized to open the mail and knew how to contact the defendant to discuss the contents of the mail. Neadeau, 129 Cal. App. 3d at 237. Miller offers no evidence that Alex at UPS had the ability to perform either function. Further, unlike Miller, the Neadeau plaintiff offered evidence through the submission of declarations that the defendant had actually received the summons and complaint. Id. The defendant did not deny the facts set forth in plaintiff's declaration, despite having an opportunity to do so when he appeared to contest the default judgment entered against him. Id. Indeed, the Neadeau court found that the defendant's appearance and failure to contest plaintiff's declarations constituted compelling evidence that the defendant did actually receive the complaint. Id. Moreover, Miller offers no evidence that Yeo still had a mailbox with UPS in June 2010, when Alex signed for the summons and complaint. In fact, the post office application that Miller attached to his Opposition is dated March 2010. Dkt. No. 72-3 at 2. Yet, in May 2010, Miller's counsel submitted a declaration in which he stated that he was "told that Mr. Yeo had graduated [from Cornell University] and was no longer living in New York." Dkt. No. 72-6, ¶ 5. The following day, Miller's counsel explained to this Court that Miller was "not even sure [Yeo] is in the United States" after having conducted an investigation into Yeo's whereabouts.1 Declaration of Julio Avalos in Support of Reply, Ex. A at 4:11-12. Nonetheless, less than a month later, Miller placed the summons and complaint in the mail to a New York address and now claims that These statements are consistent with Miller's post-mailing investigation, as well. Specifically, a) Apple Computer indicated that Yeo has an address in Singapore, and b) someone living at Yeo's former college address informed Miller's investigator that Yeo does not live at that New York address. Dkt. No. 72-2 at 3:25-4:8. -3FACEBOOK'S REPLY ISO MOT. TO DISMISS PURS. TO 41(B) 5:10-CV-00264 (WA) 1

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such "service" was proper. At best, Miller establishes that he mailed papers to a UPS Store. The law requires more. Malletier is instructive here. In Malletier, the court found a UPS Store clerk's acknowledgment insufficient to establish service on a corporation, because there was no indication that UPS was authorized to receive process. Malletier, 2008 WL 4330455 *2. The court reached that result despite the fact that the putatively-served defendant actually used the UPS Store mailbox. Id. Here, Miller fails to show the required authority and all but admits that Yeo did not use the mailbox in June 2010. Dkt. No. 72-6, ¶ 5; Avalos Decl. Ex. A at 4:11-12. Miller simply has not submitted the evidence required to establish that Defendant Yeo received the summons and complaint and, consequently, has not satisfied his burden of showing that he has complied with C.C.P. § 415.40. Thus, he did not perfect service by July 30, and the case should be dismissed. B. Miller Should Not Be Afforded Another Opportunity To Serve Yeo

Having failed to serve Yeo as this Court ordered, Miller attacks Facebook, a defendant, for not doing enough to "encourage" Yeo to appear in this case and, incredibly (though indirectly), asks this Court for another extension of time in which to serve Yeo. Opp. at 7-8. His request should be denied. As Facebook pointed out in its opening brief, Miller has had ample time, nearly a year, to serve Yeo. In his Opposition, Miller blames Facebook for its failure to serve Yeo and insinuates that Facebook has not provided Miller with all of the information it possesses regarding Defendant Yeo. Opp. at 7, n2. In fact, Miller requests that Facebook provide information regarding "Yeo's whereabouts, or his intentions with regard to this lawsuit. . . ." Opp. at 8. Miller is grasping at straws. As Facebook's attorney said at the March hearing, Facebook does not know where Yeo is and, importantly, any information that Facebook could obtain would come from public sources. Opp. at 7, n2. Further, as discussed in the Declaration of Craig Clark, filed concurrently with this Reply, Facebook already has provided Miller with all of the information in its possession regarding Defendant Yeo. Indeed, Miller appears to be in possession of more information about -4FACEBOOK'S REPLY ISO MOT. TO DISMISS PURS. TO 41(B) 5:10-CV-00264 (WA)

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Yeo than is Facebook. See Dkt. No. 72-6, generally; see also Declaration of Craig Clark, filed herewith, ¶¶ 2-3. Yet, Miller still has not been able to find, much less serve, Yeo. Miller has had sufficient time to comply with this Court's Order requiring service by July 30, 2010. Dkt. No. 56 at 13. He has not done so. III. CONCLUSION The Court ordered Miller to serve Yeo by the end of July because Yeo appears essential to Miller's case. Miller has provided insufficient evidence to establish that Yeo actually received the complaint. Consequently, Miller has failed to properly serve Yeo and the case should be dismissed. Dated: September 2, 2010 ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ Thomas J. Gray /s/ Thomas J. Gray Attorneys for Defendant FACEBOOK, INC.

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FACEBOOK'S REPLY ISO MOT. TO DISMISS PURS. TO 41(B) 5:10-CV-00264 (WA)