Youngevity International Inc. v. Innov8tive Nutrition, Inc. et al

Filing 79

ORDER Granting 78 Joint Motion for Plaintiff to Serve Non-Party Fit Brands LLC with Revised Document Subpoena through Alternative Service. Signed by Magistrate Judge Allison H. Goddard on 1/6/2025. (hmw)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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YOUNGEVITY INTERNATIONAL
INC.,

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ORDER GRANTING JOINT
MOTION FOR LEAVE FOR
PLAINTIFF TO SERVE
NON-PARTY FIT BRANDS LLC
THROUGH ALTERNATIVE
SERVICE

Plaintiff,

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Case No.: 3:22-cv-00721-LL-AHG

v.
INNOV8TIVE NUTRITION, INC., et al.,
Defendants.

[ECF No. 78]

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Before the Court is the parties’ joint motion for leave for Plaintiff Youngevity

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International Inc. (“Plaintiff”) to serve Non-Party FIT Brands LLC (“Fit Brands”) with a

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revised subpoena through alternative service. ECF No. 78.

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“Federal Rule of Civil Procedure 45(b)(1) provides that ‘[s]erving a subpoena

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requires delivering a copy to the named person[.]’ However, after attempts at personal
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3:22-cv-00721-LL-AHG

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serve have been tried and failed, ‘[c]ourts are more inclined to grant [] alternative service’

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provided ‘the serving party has provided sufficient evidence of its earlier diligence in

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attempting to effectuate personal service.’” Bhatia v. United States, No. 2:19-cv-2313-

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DAD-DB, 2024 WL 967616, at *1 (E.D. Cal. Mar. 6, 2024) (brackets in original) (quoting

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Fujikura Ltd. v. Finisar Corp., No. 15-mc-80110-HRL-JSC, 2015 WL 5782351, at *5

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(N.D. Cal. Oct. 5, 2015)). Courts are also more inclined to grant alternative service where

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the proposed method of alternative service “is reasonably calculated to provide timely, fair

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notice and an opportunity to object or file a motion to quash.” In re Delta Air Lines, Inc.,

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No. LA-CV20-00786-JAK-SKx, 2023 WL 9018986, at *4 (C.D. Cal. Dec. 4, 2023)

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(quoting Fujikura, 2015 WL 5782351, at *5).

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Here, Plaintiff served Fit Brands with a document subpoena on December 11, 2024.

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ECF No. 78 at 2; ECF No. 78-1 at 6. On December 19, 2024, Fit Brands, through counsel,

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emailed its objections to the subpoena. ECF No. 78 at 2; ECF No. 78-1 at 11. “[I]n an

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attempt to obviate the need for court involvement,” Plaintiff revised its subpoena. ECF

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No. 78 at 2. Plaintiff represents to the Court that it has diligently attempted to serve its

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revised subpoena on Fit Brands through its registered agent and through its counsel. Id. For

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example, Plaintiff’s process server attempted to serve Fit Brands with the revised subpoena

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on December 27, December 28, and December 30, but was unable to do so; thus, Plaintiff

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now “believes that Fit Brands is now intentionally evading service.” Id. at 2–3; ECF No.

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78-1 at 20. Further, Fit Brands’ counsel “refus[ed] to accept service of the revised subpoena

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despite objecting to the subpoena on behalf of Fit Brands.” ECF No. 78 at 3; ECF

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No. 78-1 at 8 (“I am not authorized to accept service on behalf of FIT Brands, LLC of

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anything.”). As such, the parties jointly request that Plaintiff be permitted to serve the

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revised subpoena on Fit Brands’ counsel through the email address that counsel used to

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serve Fit Brands’ objections to Plaintiff’s original subpoena, and serve the revised

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subpoena on Fit Brands’ registered agent through certified mail. ECF No. 78 at 4. Plaintiff

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contends that its proposed methods of alternative service will provide Fit Brands with

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timely and fair notice and an opportunity to object and quash the subpoena. Id. at 3.
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Upon due consideration, the Court finds good cause to GRANT the parties’ joint

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motion. ECF No. 78. Plaintiff is granted leave to serve the revised subpoena on Fit Brands

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by emailing the revised subpoena to Fit Brands’ attorney, Jeffrey S. Moeller

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([e-mail]), and by mailing the revised subpoena, through certified mail, to

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Fit Brands’ registered agent, Richard V. Washburn, 440-44 Deer Island Dr., Aurora, OH

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44202.

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IT IS SO ORDERED.
Dated: January 6, 2025

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3:22-cv-00721-LL-AHG