McCurry Studios LLC v. Web2Web Marketing, Inc.

Filing 18

ORDER RE PROPER METHOD OF SERVICE OF DISCOVERY REQUEST ON DEFAULTING DEFENDANT by Hon. William Alsup denying 6 Motion to Compel.(whalc2, COURT STAFF) (Filed on 3/18/2014).

1
2
3
4

IN THE UNITED STATES DISTRICT COURT

5
FOR THE NORTHERN DISTRICT OF CALIFORNIA
6
7
8

MCCURRY STUDIOS LLC,
Plaintiff,

9

11
For the Northern District of California

United States District Court

10

12

No. MC 13-80246 WHA
v.
WEB2WEB MARKETING, INC.,
Defendant.
/

ORDER RE PROPER METHOD OF
SERVICE OF DISCOVERY REQUEST
ON DEFAULTING DEFENDANT

13
14

This short order addresses a common misconception about the procedure to follow under

15

our federal rules to require a civil defendant who has defaulted to stand for a deposition (and/or

16

to produce documents). This order assumes that in personam jurisdiction is constitutionally

17

appropriate and focuses instead on the service requirements under Federal Rules of Civil

18

Procedure 4 and 5.

19

Once a defendant makes an appearance in a civil action, discovery may be initiated

20

against him by notice under Rule 5, which notice can be made, for example, by mere mailing.

21

On the other hand, when discovery is sought against a non-appearing defendant, i.e., someone

22

who has defaulted, a subpoena under Rule 45 must be personally served on him, notwithstanding

23

the fact that he was personally served with the complaint and summons earlier under Rule 4.

24

This is because he has not appeared in the action and thus acquiesced in the Rule 5 regime of

25

notice by mere mail that applies to parties after they appear in a civil action, a system of service

26

by mail that depends, among other things, upon the defendant (or his counsel) identifying on the

27

record a proper mailing address for purposes of the action (pursuant to Rule 11(a)). Non-

28

appearing defendants are thus like any other non-party — they must be subpoenaed to require

1

their attendance at a deposition. The same is true if the deposition seeks documents — a

2

subpoena is necessary.

3

To consider it from a different angle, after a defendant is properly served with a

against him, the new amended complaint must, all over again, be personally served with a

6

summons via Rule 4. This is so that the defendant will know what claims he will be conceding if

7

he chooses to ignore the proceedings. This is expressly required by Rule 5(a)(2). Again, in such

8

a scenario, there is no address of record for the defaulting defendant to which to send mailed

9

notice. The same is true when an injunction is issued against a defaulting defendant — it must

10

be personally served on the person to be enjoined in order to subject him to the contempt power

11
For the Northern District of California

summons and complaint under Rule 4 but defaults, and a plaintiff wishes to add a new claim

5

United States District Court

4

of the district court.

12

Contrary to the above, plaintiff contends that once a defendant is properly served with a

13

summons and complaint under Rule 4, he is thereafter servable by mere mail, whether or not he

14

appears in the action, to the same extent as any appearing defendant. This order disagrees. Until

15

a defendant appears (and identifies a mailing address that will bind him), there is no practical

16

way to effect service under Rule 5.

17

Suppose that an order issued on the instant motion commanding our defaulting defendant

18

to appear for a deposition. How would that order be served? Since the respondent has not

19

appeared, there is no address of record that would bind our defendant. It would have to be

20

personally served (like a subpoena) to subject him to the contempt power of the district court.

21

Until the respondent (the defaulting defendant) provides a mailing address that will bind him for

22

purposes of the case, there is no way for a district court to know that mail sent to any address,

23

even a last known address, will be sufficient.

24

Admittedly, Rule 5(b) lists ways to serve something under Rule 5 and one of them is

25

“mailing it to the person’s last known address — in which event service is complete upon

26

mailing.” But an earlier part of the same rule, subsection (a)(2), makes clear that no service is

27

required on a party who is in default for failing to appear (except for pleadings asserting a new

28

claim for relief against him). Therefore, the list of methods of service in subsection (b)(2) is
2

1

meant for those who appear, not for those who default, and the last known addresses of such

2

appearing defendants would be of record. See Wright & Miller, Federal Practice and Procedure:

3

Civil 3d 1148 (“Federal Rule of Civil Procedure 5(b)(2) authorizes the service of all papers

4

following a party’s appearance by mail.”) (emphasis added).

5

Plaintiff cites to E.I. DuPont de Nemours & Co. v. Kolon Indus., Inc., 286 F.R.D. 288,

6

291 (E.D. Va. 2012), and McElveen v. Carib Inn Int’l, Inc., 71 F.R.D. 193, 194–95 (S.D. Tex.

7

1976). Both decisions are distinguishable. They addressed the scope of discovery in favor of

8

judgment creditors, and not the service required for a defaulting defendant.

9

Contrary to plaintiff, Section 1963 of Title 28 of the United States Code merely provides
that a judgment in one district may be registered in another with the same force and effect (this

11
For the Northern District of California

United States District Court

10

action being predicated on an original judgment in Delaware). Of course, this district will give

12

full effect to the judgment of another sister district, but that is not the problem. Section 1963

13

does not address our immediate problem of how to serve a defaulting defendant. Further

14

contrary to plaintiff, Rule 69 provides for discovery in aid of execution on a judgment “as

15

provided in these rules.” That simply means Rule 45 in the case of a defaulting judgment debtor.

16

(While Rule 69 also allows discovery by “the procedure of the state where the court is located,”

17

no contention is made herein that any state procedures would allow service by mere mail.)

18

To sum up, when a defendant defaults and a plaintiff wishes to depose him and/or acquire

19

his documents (for example, to prove up damages), the plaintiff must subpoena the defaulting

20

defendant under Rule 45 and may not compel attendance via mere mailed notice or other less

21

formal notice methods. See Moore’s Federal Practice, Third Edition, 45.02[4][a]; and Diebold,

22

Inc. v. Record Files, Inc., 11 F.R.D. 543, 544 (N.D. Ohio 1951).

23

Therefore, in the instant default action, the motion to compel is DENIED, having been

24

premised on Rule 5 methods of notice. This is without prejudice to a later application made

25

pursuant to Rule 45 or a consent order proposed by the parties. Please remember, as to any

26

consent order, that while an individual may appear pro se, a corporation or other entity may

27

appear only via counsel. See Civil L.R. 3-9(b). And, this order is without prejudice to an

28
3

1

application for a form of substitute service, such as by publication and/or e-mail, upon a showing

2

of evasion of Rule 4 service.

3
4

IT IS SO ORDERED.

5
6

Dated: March 18, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4