Durant v. Jones Fire Protection, Inc.

Filing 4

ORDER Denying 3 Plaintiff's Ex Parte Application for an Order Directing the Service be Made on the California Secretary of State. Plaintiff may re-file its motion after it makes reasonable diligent attempts to serve a corporate officer of Defendant. Signed by Judge Gonzalo P. Curiel on 11/2/16. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN DURANT d/b/a JOHN
DURANT PHOTOGRAPHER,

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v.

CASE NO. 16cv2243-GPC(NLS)

Plaintiff,

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JONES FIRE PROTECTION, INC., a
California Corporation,

[Dkt. No. 3.]

Defendant.

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ORDER DENYING PLAINTIFF’S
EX PARTE APPLICATION FOR
AN ORDER DIRECTING THAT
SERVICE BE MADE ON THE
CALIFORNIA SECRETARY OF
STATE

Before the Court is Plaintiff’s ex parte application for an order directing that

18 service of summons be made on Defendant by personal delivery to the California
19 Secretary of State as provided under California Corporations Code section 1702.
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Background
On September 6, 2016, Plaintiff filed a complaint against Defendant for

22 copyright infringement and violation of the Digital Millenium Copyright Act. (Dkt.
23 No. 1., Compl.) On September 8, 9, 10, 11, and 12, 20161, Plaintiff attempted to
24 personally service the Summons and Complaint on Defendant’s designated agent for
25 service of process in California, David Severson. (Dkt. No. 3-2, Thompson Decl., Ex.
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The Court notes that the declaration contains a typographical error stating that
28 service was attempted on August 8, 9, 10, 11 and 12, 2016. (Dkt. No. 3-2, Thompson
Decl. ¶ 4.)
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[16cv2243-GPC(NLS)]

1 2.) After a few attempts, a note was left on the door to advise of the attempted service
2 and when the process server returned, the note was gone, the lights were on, but no one
3 answered the door. (Id. ¶ 5.)
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On September 22, 2016, Plaintiff attempted to serve Defendant through its

5 registered agent for service of process, Douglas E. Jones, in Hawaii on three occasions
6 on the same day. (Id. ¶ 6; id., Ex. 3.) Then on September 28, 2016 and September 29,
7 2016, the process server attempted personal service again and learned from a neighbor
8 that the occupant is typically gone for weeks at a time and no one was seen at the
9 property the week of September 26, 2016. (Id. ¶ 8.)
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Plaintiff seeks to serve Defendant by way of personal delivery to the Secretary

11 of State of California.
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Discussion
Federal Rule of Civil Procedure 4(h)(1)(A) provides that a corporation may be

14 serviced “in the manner prescribed by Rule 4(e)(1).” Fed. R. Civ. P. 4(h)(1)(A). Rule
15 4(e)(1) states that service may be made by “following state law for serving a summons
16 in an action brought in courts of general jurisdiction in the state where the district court
17 is located or where service is made.” Fed. R. Civ. P. 4(e)(1).
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In California, a corporation may be served through four categories of

19 individuals: “(1) a designated agent for service of process, (2) enumerated officers and
20 other authorized agents of the corporation; (3) a cashier or assistant cashier of a
21 banking corporation; and (4) where the party attempting service cannot with reasonable
22 diligence serve an individual in any other category, the Secretary of State as provided
23 by Corporations Code Section 1702.” Gibble v. Car–Lane Research, Inc., 67 Cal. App.
24 4th 295, 303 (1998) (citing Cal. Code of Civ. Proc. § 416.10). Prior to seeking an order
25 for service upon the Secretary of State, a plaintiff must demonstrate that “the
26 corporation cannot be served with the exercise of due diligence in any other manner
27 provided by law.” Verizon California Inc. v. OnlineNIC Inc., No. C08-2832 JF(RS),
28 2008 WL 4279709, at *2 (N.D. Cal. Sept. 16, 2008) (quoting Viewtech, Inc. v. Skytech
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[16cv2243-GPC(NLS)]

1 USA, Inc., No. 07-CV-541-L, 2007 WL 1429903, at *1 (C.D. Cal. May 14, 2007)).
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Plaintiff has demonstrated, by affidavit, that it made reasonable efforts and

3 attempted service on the person designated as agent for service of process in California
4 and Hawaii. However, Plaintiff has not shown it attempted to effect service by
5 “delivering a copy of the summons and the complaint . . . [t]o the president, chief
6 executive officer, or other head of the corporation, a vice president, a secretary or
7 assistant secretary, a treasurer or assistant treasurer, a controller or chief financial
8 officer, a general manager, or a person authorized by the corporation to receive service
9 of process.” Cal. Code Civ. Proc. 416.10(b). See Gofron v. Picsel Techs., Inc., No.
10 C09-4041 CW, 2010 WL 4807096, at *1 (N.D. Cal. 2010) (denying plaintiffs’ request
11 for an order permitting service on corporation through California Secretary of State
12 because plaintiffs failed to provide an affidavit that service was attempted on the
13 officers of the corporation); Verizon California Inc., 2008 WL 4279709, at *2 (denying
14 plaintiffs’ ex parte application for an order authorizing service on the defendant
15 because they did not make reasonably diligent attempts to locate and serve a corporate
16 officer). Similarly, Plaintiff did not make a reasonable efforts, under section 416.10(a),
17 to attempt service on an officer of the corporation.
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Conclusion
Based on the above, the Court DENIES without prejudice Plaintiff’s ex parte

20 request for an order permitting service by way of the California Secretary of State.
21 Plaintiff may re-file its motion after it makes reasonable diligent attempts to serve a
22 corporate officer of Defendant.
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IT IS SO ORDERED.

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25 DATED: November 2, 2016
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HON. GONZALO P. CURIEL
United States District Judge

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[16cv2243-GPC(NLS)]