Noriega v. SMA Medical, Inc. et al

Filing 20

ORDER Granting Plaintiff's 19 Motion for Leave to Serve Process Outside 90-Day Period. Signed by Judge Janis L. Sammartino on 11/25/24. (aas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SOPHIA NORIEGA,

Case No.: 24-CV-989 JLS (DEB)
Plaintiff,

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v.

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SMA MEDICAL, INC.; MJG
NETWORK, LLC; MANUEL PALMA;
and DOES 1 to 10, inclusive,

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ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO SERVE
PROCESS OUTSIDE 90-DAY
PERIOD
(ECF No. 19)

Defendants.

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On October 24, 2024, the Court ordered Plaintiff Sophia Noriega (“Plaintiff”) to

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show cause as to why Defendants MJG Network, LLC (“MJG”) and Manuel Palma (“Mr.

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Palma”) should not be dismissed from the case for failure to serve (“OSC,” ECF No. 17).

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Specifically, the Court stated it would dismiss claims against Defendants MJG and Mr.

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Palma within thirty (30) days unless Plaintiff filed either (1) proof that service of the

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summons and Complaint was timely effectuated; or (2) a declaration under penalty of

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perjury showing good cause for failure to timely effect service upon MJG and Mr. Palma

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accompanied by a motion for leave to serve process outside the 90-day period. OSC at 1–2.

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On November 19, 2024, the Court received Plaintiff’s Motion for Leave to Serve

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Process Outside the 90-Day Period (“Mot.,” ECF No. 19), as well as counsel for Plaintiff,

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Mazen Khatib’s (“Mr. Khatib”), Declaration (“Khatib Decl.,” ECF No. 19-1). The Court
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also received an Affidavit of Service demonstrating service on Defendant MJG. See ECF

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No. 18.

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Mr. Khatib represents in his Declaration the following. First, he asserts Defendant

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MJG has now been served. Khatib Decl. ¶ 3. He also explains when Plaintiff filed this

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matter, she did not know whether Mr. Palma still worked for and performed professional

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activities for SMA Medical, Inc. (“SMA”), nor did she know Mr. Palma’s whereabouts,

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the nature of MJG’s relationship with SMA, or MJG’s direct involvement in the unlawful

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actions taken against Plaintiff. Id. ¶ 4. Plaintiff was only aware that MJG purportedly

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employed Mr. Palma, and Plaintiff intended to promptly take discovery as to all these

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issues and serve MJG and Mr. Palma once it discovered MJG’s role in the events specified

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in the Complaint and upon learning Mr. Palma’s address. Id. Mr. Khatib states SMA

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removed the matter on June 5, 2024, and the removal papers included a declaration from

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Mr. Palma indicating he lived in Mexico. Id. ¶ 5. In her Motion, Plaintiff indicates this

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caused her to “reasonably believe that Rule 4(m) did not apply to Mr. Palma and that

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Plaintiff instead may have to make efforts to serve Mr. Palma through internationally

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agreed means.” Mot. at 2 (citing Fed. R. Civ. Proc. 4(f)).

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Mr. Khatib then represents that subsequently, on September 4, 2024, SMA issued

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disclosures specifying a business address for Mr. Palma, “the Doctor’s office and

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laboratory located at 2061 Ross Ave., El Centro, CA 92243.” Khatib Decl. ¶ 6. During

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September and October, Plaintiff made six attempts to personally serve Mr. Palma at that

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address, including two instances where the process server conducted a stakeout, to no avail.

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Id. ¶ 7. On November 18, 2024, the process server attempted to complete substitute service

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upon Mr. Palma at this address and was prevented from doing so by Dr. Theodore Affue,

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who the process server described as “infuriated” at her. Id.

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In reviewing SMA’s document production, Mr. Khatib asserts Plaintiff discovered a

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residential address where Mr. Palma indicated he lived in 2022, and diligently made efforts

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to serve Mr. Palma at this address, but the efforts were unsuccessful as the process server

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received no response at this address despite three attempts in early November of 2024. Id.
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¶ 8. Based on the above, Mr. Khatib indicates it appears possible, if not likely, that Mr.

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Palma was engaged in deliberate efforts to evade service. Id. ¶ 9.

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Under the circumstances, including Plaintiff’s initial lack of information regarding

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both MJG’s involvement and Mr. Palma’s whereabouts, Plaintiff’s subsequent service of

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MJG, and Plaintiff’s good faith efforts to serve Mr. Palma and allegations of potential

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evasion of service, the Court finds good cause exists for Plaintiff’s delay in serving

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Defendants MJG and Mr. Palma. Accordingly, the Court GRANTS Plaintiff’s Motion for

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Leave to Serve Process Outside the 90-Day Period (ECF No. 19). As indicated above,

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Defendant MJG has already been served. With respect to Mr. Palma, who does not appear

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to have yet been served, the Court finds that additional time is warranted based on

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Plaintiff’s good faith efforts. See Cadles of W. Virginia, LLC v. Alvarez, No. 20-CV-2534

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TWR (WVG), 2021 WL 2156187 (S.D. Cal. May 27, 2021) (granting additional time to

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serve where the plaintiff claimed it tried to serve the remaining defendants many times to

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no avail, and alleged defendants evaded service).

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As Plaintiff does not specify the additional time she requests to do so, the Court finds

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Plaintiff will have thirty (30) days from the date of this Order to complete service on Mr.

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Palma.

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IT IS SO ORDERED.
Dated: November 25, 2024

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