Strategic Operations, Inc. v. Joseph et al

Filing 14

ORDER Denying Plaintiff's 9 Motion for Alternative Service Without Prejudice. Signed by Judge Janis L. Sammartino on 6/29/2018. (mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STRATEGIC OPERATIONS, INC.,

Case No.: 17cv1347-JLS (NLS)

Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTION FOR ALTERNATIVE
SERVICE

v.
BREA K. JOSEPH, et al.,

(ECF No. 9)

Defendants.

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Plaintiff Strategic Operations, Inc’s previously filed a motion for alternative service,

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requesting the Court permit alternative service for Defendant Kasey Erokhin. (ECF No 5.)

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The Court denied the motion without prejudice after finding that Plaintiff had not attempted

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personal or other forms of service on Erokhin with reasonable diligence. Plaintiff has re-

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filed the motion, again requesting the Court permit service by publication for Erokhin.

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(“MTN,” ECF No. 9-1).

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LEGAL STANDARD

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Pursuant to Federal Rule of Civil Procedure 4(e), an individual may be served by

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“following state law for serving a summons in an action brought in courts of general

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jurisdiction in the state where the district court is located or where service is made” or by

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personal service, leaving a copy of the summons and complaint “at the individual’s
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dwelling or usual place of abode with someone of suitable age and discretion who resides

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there” or “delivering a copy of each to an agent authorized by appointment or by law to

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receive service of process.” California law provides for service by publication in its Code

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of Civil Procedure § 415.50. This section provides that “[a] summons may be served by

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publication if upon affidavit it appears to the satisfaction of the court in which the action

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is pending that the party to be served cannot with reasonable diligence be served in another

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manner specified in this article.”

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“reasonable diligence,” the court examines the affidavit required by the statute to see

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whether the plaintiff “took those steps a reasonable person who truly desired to give notice

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would have taken under the circumstances.” Donel, Inc. v. Badalian, 87 Cal. App. 3d 327,

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333 (Ct. App. 1978). And, because of due process concerns, service by publication should

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be allowed “only as a last resort.” Id. at 332.

In determining whether a plaintiff has exercised

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“Before allowing a plaintiff to resort to service by publication, the courts necessarily

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require him to show exhaustive attempts to locate the defendant, for it is generally

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recognized that service by publication rarely results in actual notice.” Watts v. Crawford,

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896 P.2d 807, 811 n.5 (Cal. 1995) (citation and internal quotation marks omitted).

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Accordingly, “the term ‘reasonable diligence’ . . . denotes a thorough, systematic

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investigation and inquiry conducted in good faith by the party or his agent or attorney.” Id.

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(citations and some internal quotation marks omitted). However, “[a] number of honest

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attempts to learn defendant’s whereabouts or his address by inquiry of relatives, . . . and by

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investigation of appropriate city and telephone directories, voter registries, and assessor’s

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office property indices situated near the defendant’s last known location, generally are

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sufficient.” Id. (citations and internal quotation marks omitted).

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ANALYSIS

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The Court previously denied Plaintiff’s motion for service through publication

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because the Court located a potential address for Erokhin through LexisNexis and there

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was no evidence that Plaintiff attempted to serve her at that address. The Court also noted

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there was no evidence Plaintiff attempted service on Erokhin by mail. Further, there was
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no information as to why Erokhin is a “necessary and proper” party to this case.

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In its renewed motion, Plaintiff states personal service has been attempted on Ms.

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Erokin at every known address. (MTN 3.) Plaintiff states copies of the summons and

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Complaint have been mailed to these addresses, but Plaintiff has received no response. (Id.

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at 4.)

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In Donel, the court concluded that the plaintiff failed to exercise reasonable diligence

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in attempting to locate the defendant prior to applying to the court for permission to serve

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defendant by publication because plaintiff “failed to take the one step which patently

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appeared to hold the most promise for locating [the defendant]”—“an inquiry addressed to

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[the defendant’s attorney]”). 87 Cal. App. 3d at 333.

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Here, Plaintiff states that Erokhin worked for Plaintiff in the past. (ECF No. 11, at

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2.) Erokhin and another Defendant, Brea Joseph, left the company and began working

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together. (Id.) Plaintiff has successfully served Joseph, who has filed a motion to dismiss.

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(ECF No. 10.) Given the background information and the history of the Parties, the Court

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finds that Plaintiff’s efforts in locating Erokhin are not “exhaustive.” Plaintiff has not

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alleged whether it asked Joseph, or Joseph’s attorney, of the whereabouts of Erokhin. This

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would be a good step in attempting to locate Erokhin, and the Court finds is a step “which

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a reasonable person who truly desired to give notice would have taken under the

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circumstances.” See Donel, Inc, 87 Cal. App. 3d at 332. Plaintiff has also not stated

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whether it has a phone number or email address for Erokhin, which the Court finds likely

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considering Erokhin was previously employed by Plaintiff.

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CONCLUSION

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The Court is not satisfied that Plaintiff is entitled to proceed via service by

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publication,1 and DENIES WITHOUT PREJUDICE Plaintiff’s Motion for Alternative

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California Code of Civil Procedure Section 415.50(a)(1) also “requires that the plaintiff provide
independent evidentiary support, in the form of a sworn statement of facts, for the existence of a cause of
action against the defendant.” McNamara v. Lee, No. 11cv1344 BTM (WMc), 2011 WL 4635618, at *1
(S.D. Cal. Oct. 5, 2011). Plaintiff has included facts as to why it alleges Erokhin is a necessary and proper
party. Because the Court denies the Motion based on a lack of reasonable diligence in attempted service,
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Service.
IT IS SO ORDERED.
Dated: June 29, 2018

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the Court does not address the propriety of the case against Erokhin here.

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