Carson v. Griffin et al

Filing 9

ORDER by Judge Kandis A. Westmore denying 6 Motion to allow alternate service of process without prejudice. (kawlc2, COURT STAFF) (Filed on 4/16/2013)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

FLETCHER CARSON,

9

Plaintiff,

10

vs.

11

Northern District of California

United States District Court

12

WALSH GRIFFIN, et al.,

Case No.: 13-cv-0520 KAW
ORDER DENYING PLAINTIFF'S MOTION
TO ALLOW ALTERNATE SERVICE OF
PROCESS WITHOUT PREJUDICE AND
DISMISSING DEFENDANTS AJR
INTERNATIONAL FZE AND VICTORIA
ELLIS WITHOUT PREJUDICE

Defendants.

13
14
15

Plaintiff Fletcher Carson, who proceeds pro se and has paid the filing fee, filed the complaint

16
17

in this case on February 6, 2013. On March 24, 2013, Plaintiff filed a Motion to Allow Alternate

18

Service on Defendants. For the following reasons, the motion is denied without prejudice.

19

I.

20

Background
Plaintiff is suing the following Defendants: Walsh Griffin, Walsh Capital Group, AJR

21

International FZE, Kelvin Don, Salvtore Financial Agency, Priscilla Ellis, John Kagose, Kenietta

22

Johnson, KVP International Consultants, KVP International Trades, Victoria Ellis, Vicken

23

International Traders LLC, Ivan Ahmed Azziz, Daniel Okwudili Nwankwo, Cisse Abdoulaye, and

24

Ben Aka. Plaintiff alleges that Defendants were responsible for fraudulently soliciting money from

25

him, which was never returned.

26
27
28

None of the Defendants have yet appeared in the case. Plaintiff's Motion to Allow Alternate
Service states that he attempted to serve all of the Defendants through the United States mail on

1

February 11, 2013. However, many of the service documents were returned for lack of a correct

2

address.

3

II.

Dismissal of Defendants

4

In his motion for alternate service, Plaintiff states that he wishes to "delete from the

5

complaint" Defendant Victoria Ellis, and "remove[]" Defendant AJR International FZE. Mot. at 4.

6

Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), Plaintiff may dismiss these parties without

7

prejudice without a Court order, as Defendants have not served an answer or motion for summary

8

judgment. The Court construes Plaintiff's requests in the motion for alternate service as a notice of

9

dismissal. Defendants Victoria Ellis and AJR International FZE are, therefore, dismissed from this

10

case without prejudice.

11

III.

In his motion, Plaintiff asserts that he has sent all of the Defendants—except for those

Northern District of California

12
United States District Court

Motion for Alternate Service

13

Defendants who are dismissed without prejudice, as explained above—registered emails containing

14

all of the service documents. The emails were sent through a service called RPost Holdings, which,

15

according to Plaintiff, returns an acknowledgement that the recipient's email server received the email.

16

Plaintiff claims that "none of the emails bounced." Mot. at 4-5.
Some of the Defendants are allegedly individuals from outside the United States. Other

17
18

Defendants are allegedly individuals and businesses in the United States.

19

A.

Service on Foreign Individuals and Foreign Business

20

Plaintiff wishes to serve foreign individuals, including Ivan Ahmed Azziz, a "broker located in

21

Dubai"; Daniel Okwudili Nwankwo, Azziz's attorney; Cisse Abdoulaye, an agent in Dubai; and Ben

22

Aka, another agent in Dubai, and Walsh Griffin, a person living in France and Ireland. See Comp'l at

23

3, 6-7. Plaintiff also wishes to serve a foreign business, Walsh Capital Group, which is allegedly

24

located in Ireland. Id. at 3.

25

Federal Rule of Civil Procedure 4(f) ("Serving an Individual in a Foreign Country") authorizes

26

service of process on an individual in a foreign country by any "means not prohibited by international

27

agreement, as the court orders."1 A foreign business can be served in the same manner prescribed by

28

1

The full text of Rule 4(f) allows service on a foreign individual by the following means:
2

1

Rule 4(f) for serving an individual, except personal delivery under (f)(2)(c)(1). Fed. R. Civ. P.

2

4(h)(2). A method of service of process must comport with constitutional notions of due process, and

3

must be “reasonably calculated, under all the circumstances, to apprise interested parties of the

4

pendency of the action and afford them an opportunity to present their objections.” Rio Properties,

5

Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002).
Plaintiff has not addressed whether any international agreement prohibits service via

6
7

email under the circumstances of this case.
In addition, the Court must determine whether Plaintiff's attempt to serve each of these

8
9
10

foreign individuals is reasonably calculated, under all the circumstances, to apprise them of the
action and give them an opportunity to respond.

Northern District of California

Plaintiff asserts that Ivan Ahmed Azziz is a broker located in Dubai. He asserts that he

12
United States District Court

11

served Azziz by registered email, as indicated by Ex. 1-5 to Plaintiff's motion. The exhibit is a

13

receipt authentication of an email sent to [e-mail],2 [e-mail],

14

[e-mail], and a receipt authentication of another email sent only to the latter

15

two email addresses. Plaintiff apparently sent two emails because the attachments were too

16

large to be sent in one email. The complaint states that Azziz "introduced Plaintiff to Walsh

17

Griffin via email," and Ex. G to the complaint states that the latter two email addresses above

18
19
20
21
22
23
24
25
26
27
28

"(1) by any internationally agreed means of service that is reasonably calculated to give notice,
such as those authorized by the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does
not specify other means, by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country's law for service in that country in an action in
its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or letter of request;
or
(C) unless prohibited by the foreign country's law, by:
(i) delivering a copy of the summons and of the complaint to the individual
personally; or
(ii) using any form of mail that the clerk addresses and sends to the individual
and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders."
2

This appears to be Plaintiff's email address.
3

1

are Azziz's email addresses. Comp'l at 2. The receipts have a column showing that the emails

2

were "delivered" on March 15, 2013. The receipts also have a column for the date and time

3

that the emails were "opened," but this column is blank.

4

The Court finds that service on Azziz by registered email is not sufficient for the

5

following reasons. Plaintiff does not explicitly state that he communicated with Azziz through

6

these email addresses. In addition, the column of the receipt authentication document labeled

7

"opened" is blank. In the absence of explanation, the Court presumes that if the email had

8

been read by the recipient, the "opened" column would show that. Plaintiff will be given an

9

opportunity to cure these defects, as explained below.

10

Plaintiff also apparently seeks to serve Daniel Okwudili Nwankwo, Azziz's attorney;

Northern District of California

Cisse Abdoulaye, an agent in Dubai; and Ben Aka, another agent in Dubai, through the

12
United States District Court

11

registered emails to Azziz's email addresses. See Ex. I-5 ("Authentication of Registered Email

13

Receipt to: [e-mail], [e-mail] for Ivan Ahmed Azziz,

14

Daniel Okwudili Nwankwo, Cisee Abdoulaye, Ben Aka"). It is unclear why those Defendants

15

should be served via email addresses belonging to Azziz, i.e., why emails sent to Azziz's

16

accounts are reasonably calculated to be received by Nwankwo, Abdoulaye, or Aka. Again,

17

there is no indication that Plaintiff has communicated with these individuals through these

18

email addresses, and the receipt authentication does not show that the emails were actually

19

opened.

20

Plaintiff seeks to serve Walsh Griffin, whom he claims is an individual living in France

21

and Ireland, through the email addresses [e-mail] and

22

[e-mail]. Plaintiff's complaint attaches printouts of a screenshot of a

23

website, walshcapital.org, but does not explain why he believes that emails sent to the above

24

accounts are reasonably calculated to be received by Walsh Griffin personally.

25

Plaintiff also apparently seeks to serve the business, Walsh Capital Group, through the

26

same email addresses. The Court agrees that an email to a business's contact email address

27

that is listed on its website, is reasonably calculated, under all the circumstances, to apprise the

28

business of this action and afford it an opportunity to present their objections. Again,

4

1

however, there is no indication from the receipt authentication that the emails sent to those

2

addresses were ever opened. However, it is reasonable to assume that a business checks, or

3

ought to check, an email address that is listed on its website. Thus, if Plaintiff demonstrates in

4

a future motion for alternate service that no international agreement prohibits service by

5

registered email in Ireland, the Court will deem Walsh Capital Group served. 3

6

II.

7

Individuals to be served living in the United States include: Kelvin Don, Priscilla Ellis,

8

John Kagose, and Kenietta Johnson. See Comp'l at 2-3. Businesses based in the United States

9

include Salvtore Financial Agency, KVP International Consultants, KVP International

10

Service on Domestic Individuals

Trades,4 and Vicken International Traders LLC. Id.

Northern District of California

Federal Rule of Civil Procedure 4(e)(1) provides that “an individual ... may be served

12
United States District Court

11

in a judicial district of the United States by: following state law for serving a summons in an

13

action brought in courts of general jurisdiction in the state where the district court is located or

14
3

15
16
17
18
19
20
21
22
23
24
25

Plaintiff may wish to consider that walshcapital.org is listed as a "fraudulent website" on Artists
Against 419, a website that purports to identify "fraudulent websites and make[] this data available as
a public service." See http://db.aa419.org/fakebanksview.php?key=70753, last accessed on April 8,
2013. The website also lists the following information regarding the person who registered the
website:
"Registrant Name:Shaw Thompson
Registrant Organization:N/A
Registrant Street1:3011 Greenbrook
Registrant Street2:
Registrant Street3:
Registrant City:Arlington
Registrant State/Province:Texas
Registrant Postal Code:76016
Registrant Country:US
Registrant Phone:[phone]
Registrant Phone Ext.:
Registrant FAX:
Registrant FAX Ext.:
Registrant Email:[e-mail]."

26
27
28

Id. The Court makes no findings regarding the veracity of this information.
4

According to the complaint, KVP International Consultants and KVP International Trades are the
same company. Comp'l at 5.
5

1

where service is made.” As this Court is located in California, service of process is governed

2

by California law. Section 415.30 of the California Code of Civil Procedure provides that

3

service may be made by first-class mail to the person to be served. Section 413.30 of the

4

California Code of Civil Procedure states that “[w]here no provision is made in this chapter or

5

other law for the service of summons, the court in which the action is pending may direct that

6

summons be served in a manner which is reasonably calculated to give actual notice to the

7

party to be served and that proof of such service be made as prescribed by the court.”
Plaintiff states that mail containing the service documents was delivered to Priscilla

8

Johnson and John Kagose as employees of KVP International Consultants.5 See Mot. at 3-4.

11

The Court finds that mail delivered to the address listed on the company's website would

12
Northern District of California

Ellis as CEO of KVP International Consultants, KVP International Consultants, and Kenietta

10

United States District Court

9

comply with the requirements of Section 415.30. The exhibits to Plaintiff's motion attempt to

13

show that this was accomplished. However, the exhibits do not show to whom and to what

14

address the package was delivered, or what documents were contained in the package. If

15

Plaintiff has met the requirements of Cal. Code Civ. P. § 415.30, there is no need for alternate

16

service by email on these Defendants. If Plaintiff has not met the requirements of § 415.30, he

17

may re-serve them in compliance with the statute.
Plaintiff states that the mail he sent to Kelvin Don, Salvtore Financial Agency, and

18
19

Vicken International Traders was returned, as the addresses were wrong. Plaintiff's exhibit

20

shows that he sent registered emails to Kelvin Don at the address

21

[e-mail]. Mot., Ex. F-2. Unlike any of the other receipts, this receipt

22

shows that one of the registered emails was opened. Neither Plaintiff's motion nor his

23

complaint, however, explains why he believes that this email address belongs to Kelvin Don

24

or to Salvtore Financial Agency. Similarly, Plaintiff does not explain why the entity Vicken

25

International Traders can be served at the email address [e-mail]. See Mot., Ex. A-4

26
27
28

5

The Court notes that the names Priscilla Ellis, Kenietta Johnson and John Kagose are listed on the
website under the section titled, "Meet Our Team." Mot., Ex. C.
6

Because Plaintiff has not provided this explanation, the Court cannot find at this time

1
2

that the registered email to these email addresses is reasonably calculated to give actual notice

3

to these Defendants.

4

IV.

Conclusion

5

For the reasons explained above, it is hereby ORDERED that:

6

1.

7

Plaintiff's Motion for Alternate Service is denied without prejudice. Within 21 days of

the date of this order, Plaintiff may file a revised motion remedying the defects discussed above.

8

2.

9

Defendants AJR International FZE and Victoria Ellis are hereby dismissed without

prejudice.

10
11

Northern District of California

United States District Court

12

DATE: April 16, 2013

__________________________
KANDIS A. WESTMORE
UNITED STATES MAGISTRATE JUDGE

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

7