Wells Fargo Bank NA v. Kay et al

Filing 17

ORDER by Magistrate Judge Jacqueline Scott Corley granting 14 Motion for Service by Publication. (ahm, COURT STAFF) (Filed on 11/16/2020)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WELLS FARGO BANK NA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 20-cv-05481-JSC ORDER RE: MOTION FOR SERVICE BY PUBLICATION v. MIKE KAY, et al., Re: Dkt. No. 14 Defendants. 12 13 Wells Fargo brings this interpleader action seeking to implead $25,000 with the Court 14 which is current the subject of a dispute between Defendant Mike Kay and Defendant CRF Small 15 Business Loan Company, LLC (“CRF”). The dispute arises from a wire transfer from CRF to Mr. 16 Kay which CRF contends was the result of a fraud. Wells Fargo has served CRF and CRF has 17 answered the complaint. (Dkt. Nos. 7, 9.) Wells Fargo has attempted to serve Mr. Kay, but it has 18 been unable to locate him. Wells Fargo thus requests permission to serve Mr. Kay by publication. 19 (Dkt. No. 14.) After carefully considering the motion, the Court concludes that oral argument is 20 unnecessary, see N.D. Cal. Civ. L.R. 7-1(b), and GRANTS the motion for service by publication. 21 BACKGROUND 22 This action involves a wire transfer sent by CRF to Mr. Kay’s Wells Fargo account. 23 Because CRF now disputes the legality of the transfer, Wells Fargo filed the underlying impleader 24 action. Wells Fargo attempted to serve Mr. Kay via the address he used when he opened his Wells 25 Fargo account: 2212 High Street, Apt. E. Oakland, California. (Dkt. No. 14-1 at ¶¶ 3-4; Dkt. No. 26 16 at ¶ 5, Exhibit A.) However, the process server found that the apartment was “visibly vacant.” 27 (Dkt. No. 16, Exhibit A.) 28 Wells Fargo retained First Legal Investigations to locate Mr. Kay. (Dkt. No. 16 at ¶ 2.) 1 First Legal searched several public record indexes and identified a second address for Mr. Kay: 2 1729 15th Street, Apt. 5, Oakland CA. 94607. (Id. at ¶¶ 3-4.) When the process server attempted 3 to locate the 1729 15th Street address, he discovered that there was no such address: 1729 15th 4 Street does not exist. (Dkt. No. 16, Exhibit B.) First Legal attests that they have been unable to 5 locate Mr. Kay and that they know of “no person, firm or entity, [who] knows, or is likely to 6 know, the current residential or business whereabouts of [Mr. Kay].” (Dkt. No. 16 at ¶ 11.) 7 8 9 DISCUSSION Federal Rule of Civil Procedure 4(e) authorizes service of process pursuant to the laws of the state in which the district court sits. California law allows for five basic methods of service: 1) personal delivery to the party, see Cal. Civ. Proc. Code § 415.10; 2) delivery to someone else at 11 United States District Court Northern District of California 10 the party’s usual residence or place of business with mailing after (known as “substitute service”), 12 see id. § 415.20; 3) service by mail with acknowledgment of receipt, see id. § 415.30; 4) service 13 on persons outside the state by certified or registered mail with a return receipt requested, see id. § 14 415.40; and 5) service by publication, see id. § 415.50. Here, Wells Fargo seeks leave to effectuate 15 service under Section 415.50 which authorizes service by publication. Service by publication is 16 permissible under California law if it appears that the party to be served cannot with “reasonable 17 diligence be served in another manner specified in this article” and “[a] cause of action exists 18 against the party upon whom service is to be made or he or she is necessary or proper party to the 19 action.” Cal. Code Civ. Proc. § 415.50(a). 20 Wells Fargo’s motion and the accompanying declarations establish that Wells Fargo has 21 not been able to effectuate service through other means despite its reasonably diligent efforts. The 22 Court therefore concludes that service by publication is proper. 23 CONCLUSION 24 For the reasons stated above, Wells Fargo’s motion for service by publication is 25 GRANTED. (Dkt. No. 14.) Wells Fargo shall serve Mr. Kay by publication in accordance with 26 Cal. Code Civ. Proc. § 415.50 in the East Bay Express once a week for four consecutive weeks. 27 Upon completion of the fourth consecutive publication, service shall be deemed complete. Wells 28 Fargo shall complete service by publication by February 16, 2020. 2 1 This Order disposes of Docket No. 14. 2 IT IS SO ORDERED. 3 Dated: November 16, 2020 4 5 JACQUELINE SCOTT CORLEY United States Magistrate Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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