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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANGELA DAVIS, et al.,

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Plaintiffs,

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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

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I.

INTRODUCTION

Plaintiffs Angela Davis and Bonnie Bennett bring this putative class action against Rebel

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Creamery LLC, alleging Rebel falsely marketed its ice cream as healthier than other ice creams in

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the marketplace. Plaintiffs now move the Court to permit alternative service on Rebel pursuant to

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Federal Rule of Civil Procedure 4. ECF No. 12. For the reasons stated below, the Court DENIES

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Plaintiffs’ motion WITHOUT PREJUDICE and EXTENDS the deadline to complete service to

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December 16, 2022.

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II.

BACKGROUND

Plaintiffs filed this case on July 13, 2022, alleging Rebel “engages in a deceptive

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marketing campaign to convince consumers that [its] Products are nutritious and healthful to

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consume, and are more healthful than similar products.” Compl. ¶ 3, ECF No. 1. They assert

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claims for violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et

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seq., violation of California’s False Advertising Law, id. § 17500, et seq., violation of California’s

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Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et seq., breach of express warranty, breach

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of implied warranty of merchantability, and unjust enrichment. Compl. ¶¶ 155-241.

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Rebel Creamery LLC is a Utah company with its principal place of business in Midway,

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Utah. Id. ¶ 26. On July 27 Plaintiffs’ process server attempted service at the only address listed

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on the State of Utah Division of Corporations and Commercial Code’s database for REBEL

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CREAMERY LLC: 125 W MAIN ST #504 MIDWAY, UT 84049. Mot. at 2 & Ex. A (Utah.gov

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page for REBEL CREAMERY LLC). However, the process server was unable to complete

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service because the registered address is a United States Post Office. Id. at 2-3 & Ex. B (Return of

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Non-Service). Plaintiffs allege Rebel “improperly registered its company in a way to obfuscate

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that it used a PO Box rather than a physical location authorized to accept service,” and that “[t]his

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was knowingly done to avoid service because a company cannot be registered to a PO Box in the

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State of Utah.” Id. at 3.

United States District Court
Northern District of California

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On November 11, service was attempted at 65 White Pine Canyon Road, Park City, UT

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84060, a residential address that the company recently used on trademark documents with the

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United States Patent and Trademark Office. Id. at 3 & Ex. C. Service was not completed because

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the Park City residence is located in a gated community, and the private security at the gate’s

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entrance would not let the process server enter the neighborhood. Id.

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Plaintiffs filed the present motion on November 17, stating that their process server has

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been unable to successfully effectuate service upon Rebel at the address of its registered agent for

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service of process or at any other known address used by the company. Id. Plaintiffs believe that

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the Park City address is the true address where Rebel may be served through its authorized agent

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and owner, Austin Archibald, and therefore request the Court permit them to complete service by

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mailing a true and correct copy of the filed Summons and Complaint simultaneously by U.S.P.S.

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first class and certified return receipt requested mail as follows:

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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

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Id. at 4. Plaintiffs also seek to continue the case management conference, currently scheduled for

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December 15, 2022, and all related deadlines. Id.
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III.

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Before a federal court may exercise personal jurisdiction over a defendant, the procedural

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requirement of service of the summons and complaint must be satisfied. Omni Capital Int’l., Ltd.

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v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Federal Rule of Civil Procedure 4(h) governs

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service of process on corporations. It provides that a corporation may be served pursuant to the

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law of the state where the district court is located—here, California—or where service is to be

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made—here, Utah. See Fed. R. Civ. P. 4(h)(1)(A) (referring to service under Rule 4(e)(1), which

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provides for service pursuant to state law).
California law allows for five basic methods of service: 1) personal delivery to the party,

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United States District Court
Northern District of California

LEGAL STANDARD

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see Cal. Civ. Proc. Code § 415.10; 2) delivery to someone else at the party’s usual residence or

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place of business with mailing after (known as “substitute service”), see id. § 415.20; 3) service by

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mail with acknowledgment of receipt, see id. § 415.30; 4) service on persons outside the state by

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certified or registered mail with a return receipt requested, see id. § 415.40; and 5) service by

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publication, see id. § 415.50.

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IV.

DISCUSSION

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Plaintiffs seek to serve Rebel by alternative means because their attempts at personal

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service have been unsuccessful. However, there is no indication they have attempted service

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pursuant to California Code of Civil Procedure section 415.40, which provides that process may

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be served on a corporation outside of the state by “sending a copy of the summons and of the

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complaint to the person to be served by first-class mail, postage prepaid, requiring a return

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receipt.” Cal. Code Civ. Proc. § 415.40. “Service of a summons by this form of mail is deemed

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complete on the 10th day after such mailing.” Id. The Ninth Circuit has found that process by

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certified mail is proper for out-of-state defendants. Clark v. Andover Secs., 44 Fed. App’x 228,

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229 (9th Cir. 2002); see also Sanrio, Inc. v. Jay Yoon, 2012 WL 610451, at *3 (N.D. Cal. Feb. 24,

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2012).

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Under section 415.40, the summons and complaint must be mailed “to a person to be

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served on behalf of the corporation, i.e., to one of the individuals specified in section 416.10.”

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Dill v. Berquist Constr. Co., 24 Cal. App. 4th 1426, 1436 (1994); Bd. of Trustees of Carpenters
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United States District Court
Northern District of California

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Health & Welfare Tr. Fund for California v. Acoustictec, 2009 WL 1312917, at *2 (N.D. Cal.

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May 12, 2009). Section 416.10 provides that a corporation may be served by delivering a copy of

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the summons and the complaint to “the president, chief executive officer, or other head of the

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corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a

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controller or chief financial officer, a general manager, or a person authorized by the corporation

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to receive service of process.” Cal. Code Civ. Proc. § 416.10(b). Therefore, in order to properly

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serve an out of state corporation under these statutes, a plaintiff may serve an appropriate person

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listed under section 416.10 with the appropriate method outlined in section 415.40. “While

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addressing the process to the corporate defendant itself is not sufficient, addressing it to the

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appropriate person by their title alone will suffice.” Bender v. STMicroelectronics Corp., 2009

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WL 10736869, at *2 (N.D. Cal. Nov. 24, 2009) (citing Dill, 24 Cal. App. 4th at 1438 n.11).

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The Court notes that California law does not prohibit service by mail to a post office box.

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See TransAmerica Title Ins. Co. v Hendrix, 34 Cal. App. 4th 740, 745 (1995) (a post office box is

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a sufficient address for service under section 415.30 where it’s the address most likely to provide

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actual notice); Buckelew v. Gore, 2020 WL 4188166, at *5 (S.D. Cal. July 21, 2020), report and

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recommendation adopted, 2020 WL 5257845 (S.D. Cal. Sept. 3, 2020) (“Although the CCP does

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not provide what types of addresses are sufficient for service by mail under § 415.30, at least one

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California appellate court has found that a post office box is a proper address.”).

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As such, the Court finds Plaintiffs’ request for alternative service is premature. Instead,

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the Court ORDERS Plaintiffs to complete service in compliance with section 415.40 at these

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addresses:

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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
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acknowledgement form and a pre-addressed return envelope with postage paid. Plaintiffs shall

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also include a copy of this order. As the current service deadline is November 17, see ECF No.

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11, the Court shall extend the deadline to December 16, 2022.

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CONCLUSION

For the reasons stated above, the Court DENIES WITHOUT PREJUDICE Plaintiffs’

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motion for alternative service and EXTENDS the deadline for service to December 16, 2022. If

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Plaintiffs are unsuccessful, any renewed request for alternative service must include citation to the

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legal authority that permits the manner of service requested, including any relevant statute(s), as

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well as cases that have allowed the type of service requested, preferably from within this District.

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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

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Zoom video conference. The webinar link and instructions are located at

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https://cand.uscourts.gov/judges/hixson-thomas-s-tsh/. By January 19, 2023, the parties shall file

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a Joint Case Management Statement containing the information in the Standing Order for All

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Judges in the Northern District of California, available at: http://cand.uscourts.gov/tshorders. The

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Joint Case Management Statement form may be obtained at: http://cand.uscourts.gov/civilforms.

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All related deadlines are adjusted accordingly.

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IT IS SO ORDERED.

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Dated: November 18, 2022

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THOMAS S. HIXSON
United States Magistrate Judge

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