Netgear, Inc. v. Redzone Wireless, LLC

Filing 28

ORDER GRANTING 10 DEFENDANT'S MOTION TO QUASH COMPLAINT FOR IMPROPER SERVICE AND TERMINATING MOTIONS. Signed by Judge Beth Labson Freeman on 4/17/2017. (blflc2S, COURT STAFF) (Filed on 4/17/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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NETGEAR, INC.,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-06974-BLF

v.
REDZONE WIRELESS, LLC,
Defendant.

ORDER GRANTING DEFENDANT'S
MOTION TO QUASH COMPLAINT
FOR IMPROPER SERVICE AND
TERMINATING MOTIONS
[Re: ECF 10]

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Redzone Wireless LLC (“Redzone”), a Maine corporation, moves to quash the complaint

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in this declaratory judgment action for improper service. See generally Mot. Netgear, Inc.

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(“Netgear”), a California corporation, opposes the motion. See generally Opp’n, ECF 19. The

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Court heard argument on this motion and on Redzone’s pending motion to dismiss on April 6,

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2017. For the reasons discussed herein, the Court GRANTS Redzone’s motion to quash service

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and TERMINATES the motion to dismiss WITHOUT PREJUDICE.

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The Court lacks jurisdiction over defendants who have not been properly served. SEC v.

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Ross, 504 F.3d 1130, 1138–39 (9th Cir. 2007). Accordingly, Federal Rules of Civil Procedure

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12(b)(4) and 12(b)(5) permit a court to dismiss an action for insufficiency of service of process.

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Fed. R. Civ. P. 12(b)(4)–(5). Rule 12(b)(4) enables the defendant to challenge the substance and

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form of the summons, and 12(b)(5) allows the defendant to attack the manner in which service

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was, or was not, attempted. When the validity of service is contested, the burden is on the plaintiff

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to prove that service was valid under Rule 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.

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2004). If the plaintiff is unable to satisfy this burden, the Court has the discretion to either dismiss

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the action or retain the action and quash the service of process. Lowenthal v. Quicklegal, Inc., No.

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16-cv-3237, 2016 WL 5462499, at *14 (N.D. Cal. Sept. 28, 2016). “Dismissals for defects in the

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form of summons are generally disfavored.” U.S.A. Nutrasource, Inc. v. CNA Ins. Co., 140 F.

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Supp. 2d 1049, 1052 (N.D. Cal. 2001).

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On November 4, 2016, Netgear, through a process server, attempted to serve Redzone at

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91 Camden Street, #300, Rockland, Maine. Mot. 2, ECF 10; Ex. B to Mathur Decl. ISO Opp’n to

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Mot. Quash (“Proof of Service”), ECF 19-3. The parties agree that the process server handed a

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copy of the summons and complaint in this action to Jimmy Hannan, a Redzone employee. Mot.

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2; Opp’n 2.

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Under Federal Rule of Civil Procedure 4(h), Netgear may demonstrate that service was

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proper under either California or Maine law, or pursuant to Federal Rule (4)(h)(1)(B). Fed. R.
Civ. P. 4(h) (allowing a plaintiff to serve corporation in a judicial district of the United States in

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United States District Court
Northern District of California

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the manner prescribed by Rule 4(e)(1) for serving an individual or “by delivering a copy of the

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summons and of the complaint to an officer, a managing or general agent, or any other agent

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authorized by appointment or by law to receive service of process and—if the agent is one

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authorized by statute and the statute so requires—by also mailing a copy of each to the

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defendant”). The latter is inapplicable, as neither party contends that Mr. Hannan was an “officer,

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a managing or general agent, or any other agent authorized by appointment or by law to receive

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service of process” on behalf of Redzone. Thus, for service to be proper, it must have complied

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with either California or Maine law.

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Under the California Code of Civil Procedure, a summons may be served on a corporation

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by delivering a copy of the summons and the complaint to (1) “the person designated as agent for

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service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the

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Corporations Code”; or (2) “the president, chief executive officer, or other head of the corporation,

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

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

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service of process.” Cal. Civ. Proc. Code § 416.10. Redzone argues that the person to whom

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service was delivered here, Mr. Hannan, is not one of the persons identified in section 416.10 as

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able to accept service. Mot. 4. Netgear does not contest this assertion. Accordingly, the Court

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deems this argument conceded.
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In relevant part, Maine Rule of Civil Procedure 4(d)(8) provides that service may be

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effected upon a domestic private corporation:
by delivering a copy of the summons and of the complaint to any
officer, director or general agent; or, if no such officer or agent be
found, to any person in the actual employment of the corporation; or,
if no such person be found, then pursuant to subdivision (g) of this
Rule, provided that the plaintiff's attorney shall also send a copy of
the summons and of the complaint to the corporation by registered
or certified mail, addressed to the corporation's principal office as
reported on its latest annual return . . . .

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Me. R. Civ. P. 4(d)(8) (emphasis added). Redzone contends that Netgear’s process server did not

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comply with Rule 4(d)(8) because the proof of service makes no mention of any attempts to locate

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and serve any officer, director, or general agent of Redzone before serving Mr. Hannan, an

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employee. Reply ISO Mot. 2, ECF 24. Moreover, Redzone argues that Netgear has submitted no

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United States District Court
Northern District of California

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declaration stating that anyone made a search for or could not locate any such officer, director, or

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general agent, before serving Mr. Hannan. Id. Perhaps recognizing this, Netgear emphasizes only

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that Maine law allows for service upon an employee. See Opp’n 3–4. Netgear, however, ignores

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the condition precedent found in Rule 4(d)(8): “if no such officer or agent be found.” Having

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failed to satisfy the condition precedent through declaration or affidavit, the Court cannot agree

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that service complied with Maine law.

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Moreover, the Court does not agree with Netgear’s contention that the Court can

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“overlook” this technical defect in service because Redzone received actual notice of the lawsuit.

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Opp’n 4. In its papers, Netgear relies upon Phillips v. Johnson, 834 A.2d 938 (Me. 2003), and In

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re Richard E., 978 A.2d 217 (Me. 2009). Neither case is persuasive, however, because in both of

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those cases, the court had previously granted the plaintiffs’ motions for service by publication.

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Phillips, 834 A.2d at 945; In re Richard E., 978 A.2d at 221. Thus, the court found that actual

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notice was sufficient despite the plaintiff’s failure to comply with service requirements because

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the trial court had allowed for alternative service. Actual notice was the inquiry because, under

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Maine Rule of Civil Procedure 4(g)(1)(C), the method and manner of alternative service must be

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“reasonably calculated to provide actual notice.” Me. R. Civ. P. 4(g)(1)(C). Here, the Court has

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not allowed Netgear to serve Redzone through alternative means, and Netgear has not moved for

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such relief. Thus, the inquiry is whether Netgear has complied with the service requirements
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under Maine rules. It has not. Accordingly, the Court will GRANT Redzone’s motion to quash

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service under Rule 12(b)(5).

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The Court will nevertheless allow Netgear the opportunity to cure the service error by

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affording Plaintiff an extension of the 90-day service deadline set forth in Fed. R. Civ. P. 4(m).

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Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (holding that courts have broad discretion

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to extend the time for service under Rule 4(m)); see also Henderson v. United States, 517 U.S.

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654, 661 (1996) (the service period contained in Rule 4(m) “operates not as an outer limit subject

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to reduction, but as an irreducible allowance”); Mann v. Am. Airline, 324 F.3d 1088, 1090 (9th

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Cir. 2003) (“Rule 4(m) explicitly permits a district court to grant an extension of time to serve the
complaint[.]”). Netgear shall file a proof of service with the Court on or before May 15, 2017.

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United States District Court
Northern District of California

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Failure to file a valid proof of service shall result in issuance of an order to show cause.

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Also pending before the Court is Redzone’s motion to dismiss the complaint pursuant to

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Federal Rule of Civil Procedure 12(b)(2). ECF 9. Because the Court grants Redzone’s motion to

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quash service of the summons, the Court TERMINATES Redzone’s motion to dismiss

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WITHOUT PREJUDICE. Redzone may re-notice the motion with the Court, if necessary, once

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service has been properly effected. If Redzone chooses to re-notice the motion, the parties shall

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stand on their briefing already submitted to the Court.

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IT IS SO ORDERED.

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Dated: April 17, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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