Gonzales v. Jet-Mex Transportation, LLC et al

Filing 11

ORDER denying without prejudice 10 Ex Parte Motion for an Extension of Time to Serve Defendant and for Leave to Serve by Publication. Signed by Judge Larry Alan Burns on 5/5/14. (kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN GONZALES,

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CASE NO. 14-CV-206-LAB-NLS
Plaintiff,

ORDER DENYING EX-PARTE
MOTION FOR AN EXTENSION OF
TIME TO SERVE DEFENDANT
AND FOR LEAVE TO SERVE BY
PUBLICATION

vs.
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JET-MEX TRANSPORTATION, LLC, et
al.,
Defendants.

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This case was filed on January 30, 2014, which means the Defendants must be

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served by May 30. See Fed. R. Civ. P. 4(m). Recently, Gonzales filed an ex parte motion

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for more time to serve Defendant Chris Johnson, and for leave to serve him by publication.

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Gonzales represents that there is no contact information for Johnson on the California

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Secretary of State’s website, and that a search on Lexis Nexis turned up 33 Chris Johnsons

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in Provo, Utah who might be the Chris Johnson he is looking for. (Mot. at 2–3.) Gonzales’s

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counsel says in a supplemental declaration, “To comply with the requirements of Federal

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Rule of Civil Procedure 4(m), counsel has made diligent efforts to ascertain [a] mailing

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address for Defendant Chris Johnson in an attempt to effect service upon him without

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success.” (Sauer Decl. ¶ 5.)

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Unfortunately, the standard for the Court to permit service by publication is higher

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than Gonzales understands it to be. Service by publication is a last resort, it must be

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preceded by exhaustive efforts to locate a defendant, and it must be supported by an

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affidavit rather than a declaration—among other things. See Thieme v. Cobb, 2013 WL

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6072090 at *3–5 (N.D. Cal. Nov. 18, 2013). Here, Gonzales offers that his attorney made

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a couple of attempts to locate Johnson online, as well as his attorney’s simple word that

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“diligent efforts” have been made. That is simply inadequate. Id.; see also Rose v.

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Seamless Financial Corp., 2013 WL 1285515 at *2–5 (S.D. Cal. Mar. 26, 2013)

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The ex parte motion is DENIED WITHOUT PREJUDICE. Gonzales still has almost

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one month to serve Johnson. As May 30 draws closer, he is free to renew this motion for

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more time to serve him, as well as a more robust request to serve Johnson by publication.

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IT IS SO ORDERED.
DATED: May 5, 2014

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HONORABLE LARRY ALAN BURNS
United States District Judge

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