Davis et al v. Rebel Creamery LLC

Filing 13

ORDER by Judge Thomas S. Hixson denying without prejudice 12 Motion to Continue. Service deadline extended to 12/16/2022. Case Management Statement due by 1/19/2023. Initial Case Management Conference set for 1/26/2023 10:00 AM. (tshlc1, COURT STAFF) (Filed on 11/18/2022)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ANGELA DAVIS, et al., 7 Plaintiffs, 8 9 10 Case No. 22-cv-04111-TSH ORDER DENYING WITHOUT PREJUDICE MOTION FOR ALTERNATIVE SERVICE v. REBEL CREAMERY LLC, Re: Dkt. No. 12 Defendant. United States District Court Northern District of California 11 12 13 I. INTRODUCTION Plaintiffs Angela Davis and Bonnie Bennett bring this putative class action against Rebel 14 Creamery LLC, alleging Rebel falsely marketed its ice cream as healthier than other ice creams in 15 the marketplace. Plaintiffs now move the Court to permit alternative service on Rebel pursuant to 16 Federal Rule of Civil Procedure 4. ECF No. 12. For the reasons stated below, the Court DENIES 17 Plaintiffs’ motion WITHOUT PREJUDICE and EXTENDS the deadline to complete service to 18 December 16, 2022. 19 20 II. BACKGROUND Plaintiffs filed this case on July 13, 2022, alleging Rebel “engages in a deceptive 21 marketing campaign to convince consumers that [its] Products are nutritious and healthful to 22 consume, and are more healthful than similar products.” Compl. ¶ 3, ECF No. 1. They assert 23 claims for violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et 24 seq., violation of California’s False Advertising Law, id. § 17500, et seq., violation of California’s 25 Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et seq., breach of express warranty, breach 26 of implied warranty of merchantability, and unjust enrichment. Compl. ¶¶ 155-241. 27 Rebel Creamery LLC is a Utah company with its principal place of business in Midway, 28 Utah. Id. ¶ 26. On July 27 Plaintiffs’ process server attempted service at the only address listed 1 on the State of Utah Division of Corporations and Commercial Code’s database for REBEL 2 CREAMERY LLC: 125 W MAIN ST #504 MIDWAY, UT 84049. Mot. at 2 & Ex. A (Utah.gov 3 page for REBEL CREAMERY LLC). However, the process server was unable to complete 4 service because the registered address is a United States Post Office. Id. at 2-3 & Ex. B (Return of 5 Non-Service). Plaintiffs allege Rebel “improperly registered its company in a way to obfuscate 6 that it used a PO Box rather than a physical location authorized to accept service,” and that “[t]his 7 was knowingly done to avoid service because a company cannot be registered to a PO Box in the 8 State of Utah.” Id. at 3. United States District Court Northern District of California 9 On November 11, service was attempted at 65 White Pine Canyon Road, Park City, UT 10 84060, a residential address that the company recently used on trademark documents with the 11 United States Patent and Trademark Office. Id. at 3 & Ex. C. Service was not completed because 12 the Park City residence is located in a gated community, and the private security at the gate’s 13 entrance would not let the process server enter the neighborhood. Id. 14 Plaintiffs filed the present motion on November 17, stating that their process server has 15 been unable to successfully effectuate service upon Rebel at the address of its registered agent for 16 service of process or at any other known address used by the company. Id. Plaintiffs believe that 17 the Park City address is the true address where Rebel may be served through its authorized agent 18 and owner, Austin Archibald, and therefore request the Court permit them to complete service by 19 mailing a true and correct copy of the filed Summons and Complaint simultaneously by U.S.P.S. 20 first class and certified return receipt requested mail as follows: 21 22 23 24 25 26 Rebel Creamery LLC c/o Austin Archibald 65 White Pine Canyon Road Park City, UT 84060 and Rebel Creamery LLC c/o Austin Archibald PO Box 504 Midway, Utah, 84049 27 Id. at 4. Plaintiffs also seek to continue the case management conference, currently scheduled for 28 December 15, 2022, and all related deadlines. Id. 2 III. 1 2 Before a federal court may exercise personal jurisdiction over a defendant, the procedural 3 requirement of service of the summons and complaint must be satisfied. Omni Capital Int’l., Ltd. 4 v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Federal Rule of Civil Procedure 4(h) governs 5 service of process on corporations. It provides that a corporation may be served pursuant to the 6 law of the state where the district court is located—here, California—or where service is to be 7 made—here, Utah. See Fed. R. Civ. P. 4(h)(1)(A) (referring to service under Rule 4(e)(1), which 8 provides for service pursuant to state law). California law allows for five basic methods of service: 1) personal delivery to the party, 9 United States District Court Northern District of California LEGAL STANDARD 10 see Cal. Civ. Proc. Code § 415.10; 2) delivery to someone else at the party’s usual residence or 11 place of business with mailing after (known as “substitute service”), see id. § 415.20; 3) service by 12 mail with acknowledgment of receipt, see id. § 415.30; 4) service on persons outside the state by 13 certified or registered mail with a return receipt requested, see id. § 415.40; and 5) service by 14 publication, see id. § 415.50. 15 IV. DISCUSSION 16 Plaintiffs seek to serve Rebel by alternative means because their attempts at personal 17 service have been unsuccessful. However, there is no indication they have attempted service 18 pursuant to California Code of Civil Procedure section 415.40, which provides that process may 19 be served on a corporation outside of the state by “sending a copy of the summons and of the 20 complaint to the person to be served by first-class mail, postage prepaid, requiring a return 21 receipt.” Cal. Code Civ. Proc. § 415.40. “Service of a summons by this form of mail is deemed 22 complete on the 10th day after such mailing.” Id. The Ninth Circuit has found that process by 23 certified mail is proper for out-of-state defendants. Clark v. Andover Secs., 44 Fed. App’x 228, 24 229 (9th Cir. 2002); see also Sanrio, Inc. v. Jay Yoon, 2012 WL 610451, at *3 (N.D. Cal. Feb. 24, 25 2012). 26 Under section 415.40, the summons and complaint must be mailed “to a person to be 27 served on behalf of the corporation, i.e., to one of the individuals specified in section 416.10.” 28 Dill v. Berquist Constr. Co., 24 Cal. App. 4th 1426, 1436 (1994); Bd. of Trustees of Carpenters 3 United States District Court Northern District of California 1 Health & Welfare Tr. Fund for California v. Acoustictec, 2009 WL 1312917, at *2 (N.D. Cal. 2 May 12, 2009). Section 416.10 provides that a corporation may be served by delivering a copy of 3 the summons and the complaint to “the president, chief executive officer, or other head of the 4 corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a 5 controller or chief financial officer, a general manager, or a person authorized by the corporation 6 to receive service of process.” Cal. Code Civ. Proc. § 416.10(b). Therefore, in order to properly 7 serve an out of state corporation under these statutes, a plaintiff may serve an appropriate person 8 listed under section 416.10 with the appropriate method outlined in section 415.40. “While 9 addressing the process to the corporate defendant itself is not sufficient, addressing it to the 10 appropriate person by their title alone will suffice.” Bender v. STMicroelectronics Corp., 2009 11 WL 10736869, at *2 (N.D. Cal. Nov. 24, 2009) (citing Dill, 24 Cal. App. 4th at 1438 n.11). 12 The Court notes that California law does not prohibit service by mail to a post office box. 13 See TransAmerica Title Ins. Co. v Hendrix, 34 Cal. App. 4th 740, 745 (1995) (a post office box is 14 a sufficient address for service under section 415.30 where it’s the address most likely to provide 15 actual notice); Buckelew v. Gore, 2020 WL 4188166, at *5 (S.D. Cal. July 21, 2020), report and 16 recommendation adopted, 2020 WL 5257845 (S.D. Cal. Sept. 3, 2020) (“Although the CCP does 17 not provide what types of addresses are sufficient for service by mail under § 415.30, at least one 18 California appellate court has found that a post office box is a proper address.”). 19 As such, the Court finds Plaintiffs’ request for alternative service is premature. Instead, 20 the Court ORDERS Plaintiffs to complete service in compliance with section 415.40 at these 21 addresses: 22 23 24 25 26 27 28 Rebel Creamery LLC c/o Austin Archibald 65 White Pine Canyon Road Park City, UT 84060 and Rebel Creamery LLC c/o Austin Archibald PO Box 504 Midway, Utah, 84049 Plaintiffs shall mail not only a copy of the complaint and summons, but two copies of a notice and 4 1 acknowledgement form and a pre-addressed return envelope with postage paid. Plaintiffs shall 2 also include a copy of this order. As the current service deadline is November 17, see ECF No. 3 11, the Court shall extend the deadline to December 16, 2022. 4 5 CONCLUSION For the reasons stated above, the Court DENIES WITHOUT PREJUDICE Plaintiffs’ 6 motion for alternative service and EXTENDS the deadline for service to December 16, 2022. If 7 Plaintiffs are unsuccessful, any renewed request for alternative service must include citation to the 8 legal authority that permits the manner of service requested, including any relevant statute(s), as 9 well as cases that have allowed the type of service requested, preferably from within this District. 10 United States District Court Northern District of California V. The case management conference is CONTINUED to January 26, 2023 at 10:00 a.m. by 11 Zoom video conference. The webinar link and instructions are located at 12 https://cand.uscourts.gov/judges/hixson-thomas-s-tsh/. By January 19, 2023, the parties shall file 13 a Joint Case Management Statement containing the information in the Standing Order for All 14 Judges in the Northern District of California, available at: http://cand.uscourts.gov/tshorders. The 15 Joint Case Management Statement form may be obtained at: http://cand.uscourts.gov/civilforms. 16 All related deadlines are adjusted accordingly. 17 IT IS SO ORDERED. 18 19 Dated: November 18, 2022 20 THOMAS S. HIXSON United States Magistrate Judge 21 22 23 24 25 26 27 28 5

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