Piovo v. Stone et al

Filing 147

ORDER Granting 144 Ex Parte Motion to Extend Time of Service and for Alternative Service of Defendant CBSK Financial Group, Inc. Denying without prejudice 145 Ex Parte Motion to Allow Limited Discovery Regarding Michelle Wilson or in the Alternative to Stay Time of Service to Defendant Michelle Wilson Pending Lift of Stay of Discovery. Signed by Magistrate Judge George Foley, Jr on 12/29/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSEPH EUGENE PIOVO, Individually and as
Beneficiary of Vice Roy United Nations Credit
and Commerce International Blind Trust,

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Plaintiff,
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vs.
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ROBERT STONE, et al.,
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Defendants.
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__________________________________________)

Case No. 2:13-cv-01922-APG-GWF
ORDER

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This matter is before the Court on Plaintiff’s Ex-Parte Motion to Extend Time of Service
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and for Alternative Service of Defendant Financial Group, Inc. (#144) and to Allow Limited
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Discovery Regarding Michelle Wilson or in the Alternative to Stay Time of Service of Defendant
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Michelle Wilson Pending Lift of Stay of Discovery (#145), filed December 5, 2014.
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The Plaintiff makes three requests in these motions: (1) to extend the time to serve
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defendants CBSK Financial Group, Inc. and Michelle Wilson, (2) for an order allowing service of
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Defendant CBSK by regular mail to the home of CBSK’s President Charles Brent McElwee and
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CBSK’s Secretary Cynthia McElwee, and (3) to be allowed to conduct limited discovery to
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ascertain the specific identity of defendant Michelle Wilson out of the 17 people in the Las Vegas
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area listed under that name in electronic databases.
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Plaintiff has named CBSK Financial Group, Inc. as a defendant, and has alleged CBSK to
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be a California corporation. Plaintiff represents that he has attempted 9 times to serve Charles
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Brent McElwee and Cynthia McElwee - the President and Secretary of Defendant CBSK,
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respectively - at their home at 33 Sarazen Lane, Trabuco Canyon, CA, 92679-5007. The Plaintiff
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claims he confirmed this address through the Office of the Orange County Registrar of Voters.

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Plaintiff also notes three other addresses where he has attempted to serve the Defendant multiple

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times, to no avail. Plaintiff has shown good cause for the Court to grant an extension of time for

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service.

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Plaintiff also requests permission to serve Defendant CBSK by mail. Federal Rule of Civil

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Procedure 4(h) provides that a corporation can be served in the same manner prescribed by Rule

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4(e)(1), which regulates service of individuals. Rule 4(e)(1) allows an individual to be served by

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following state law in the state where the district court is located or where service is made.

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California Code of Civil Procedure § 415.30 provides for service by mail:

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A summons may be served by mail as provided in this section. A
copy of the summons and of the complaint shall be mailed (by firstclass mail or airmail, postage prepaid) to the person to be served,
together with two copies of the notice and acknowledgment provided
for in subdivision (b) and a return envelope, postage prepaid,
addressed to the sender.

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Cal. Civ. Pro. Code § 415.30(a).
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Cal. Civ. Pro. Code § 416.10 also allows service on a corporation to be made by delivering
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a copy of the summons and complaint to the President or Secretary, among other officers. The
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Court finds that it is appropriate to serve a California corporation by mailing a copy of the
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complaint and the summons to the President or Secretary of that corporation, so long as the service
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complies with the requirements of Cal. Civ. Pro. Code § 415.30.
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Finally, in regard to identifying and serving Defendant Michelle Wilson, the Plaintiff will
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have an opportunity to conduct discovery to identify this defendant in the event the stay of
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discovery is lifted. If necessary, the Court will hear the Plaintiff’s request for an extension of time
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to discover the defendant’s identity upon the lifting of the stay. Accordingly,
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IT IS HEREBY ORDERED that Plaintiff’s Motion to Extend Time of Service and for
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Alternative Service of Defendant CBSK Financial Group, Inc. (#144) is granted.
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IT IS FURTHER ORDERED that Plaintiff’s Motion to Allow Limited Discovery

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Regarding Michelle Wilson or in the Alternative to Stay Time of Service to Defendant Michelle

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Wilson Pending Lift of Stay of Discovery (#145) is denied, without prejudice.

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DATED this 29th day of December, 2014.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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