Huebner v. Radaris, LLC et al

Filing 24

Order by Hon. Vince Chhabria denying 19 Motion for Service by Publication.(knm, COURT STAFF) (Filed on 6/16/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN HUEBNER, et al.,

Case No. 14-cv-04735-VC

Plaintiffs,
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v.

ORDER DENYING MOTION FOR
ALTERNATIVE SERVICE

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RADARIS, LLC, et al.,

Re: Dkt. No. 19

Defendants.

United States District Court
Northern District of California

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Huebner's administrative motion for alternative service is denied without prejudice.

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Huebner asks the Court to allow him to serve Radaris, LLC and Edgar Lopin through the

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attorneys from the Boston Law Group who initially contacted Huebner's attorney and asked for an

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extension of the deadline to respond to the complaint. Huebner argues that service on the

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attorneys is appropriate for two reasons. First, Huebner claims that the Boston Law Group

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attorneys were impliedly authorized to accept service on behalf of Radaris, LLC and Lopin. This

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is incorrect. "If agency to accept service of process is to be implied, it must be implied from all

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the circumstances accompanying the attorney's appointment which indicate the extent of authority

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the client intended to confer." In re Focus Media Inc., 387 F,3d 1077, 1082 (9th Cir. 2004)

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(internal citation omitted). Here, all the Boston Law Group attorneys did was reach out to

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Huebner's attorney by email, indicate they were in the process of being engaged to represent the

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defendants, ask for an extension to respond to the complaint, and suggest that the defendants were

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open to mediation. When asked in a later email if they would accept service on behalf of the

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defendants, the Boston Law Group attorneys explicitly said they were not authorized to accept

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service, and in fact indicated that they had not been retained to represent the defendants in this suit

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and were no longer in touch with them. The actions by the Boston Law Group attorneys do not

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indicate they had implied authorization to accept service on behalf of Radaris, LLC and Lopin.

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Second, in addition to arguing that the Boston Law Group attorneys had implied consent to

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receive service, Huebner also argues he should be permitted to serve the defendants through those

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attorneys under Fed. R. Civ. Pro. 4(f)(3). But this rule only applies to serving an individual in a

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foreign country, and Huebner has not shown that Lopin is in a foreign country. Huebner has

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merely indicated that Lopin has a Cyprus address in addition to a Massachusetts address. And

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even if Huebner was in a foreign country, it would still be inappropriate to allow service on the

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Boston Law Group attorneys for the reasons identified above. See Brockmeyer v. May, 383 F.3d

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798, 805 (9th Cir. 2004) ("the decision whether to allow alternative methods of serving process

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under Rule 4(f)(3) is committed to the sound discretion of the district court.").
Finally, Huebner argues that if the Court does not allow service through the Boston Law

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United States District Court
Northern District of California

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Group attorneys, the Court should allow service by publication in The Boston Globe. But service

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by publication should be used only as a last resort and only after the plaintiff has shown

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exhaustive attempts to locate the defendant. See, e.g., Johnson v. Vuong, 2014 WL 3853430, at *1

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(E.D. Cal. Aug. 5, 2014) (allowing service of process through publication after the plaintiff made

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ten unsuccessful attempts to serve the defendant at the defendant's only known address); Watts v.

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Crawford, 10 Cal.4th 743, 749 n. 5, 42 Cal.Rptr.2d 81, 896 P.2d 807 (1995). Here, it is not clear

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that Huebner has made the necessary effort to serve Lopin and Radaris, LLC such that it should be

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allowed to serve them via publication.

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Accordingly, Huebner's motion for alternative service is denied without prejudice to

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refiling once it has undergone more exhaustive attempts to appropriately serve Lopin and Radaris,

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LLC.

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IT IS SO ORDERED.
Dated: June 16, 2015
______________________________________
VINCE CHHABRIA
United States District Judge

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