Vanliner Insurance Company v. DerMargosian et al
Filing
34
MEMORANDUM OPINION AND ORDER setting hearing on 24 Motion to Dismiss/Lack of Jurisdiction, Motion for Miscellaneous Relief, Motion to Quash filed by Greg DerMargosian and Martina DerMargosian. Evidentiary hearing set for Friday, August 16, 2013 at 11:00 a.m. (Ordered by Chief Judge Sidney A Fitzwater on 7/2/2013) (Chief Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
VANLINER INSURANCE COMPANY, §
§
Plaintiff,
§
§ Civil Action No. 3:12-CV-5074-D
VS.
§
§
GREG AND MARTINA
§
DERMARGOSIAN, et al.,
§
§
Defendants. §
MEMORANDUM OPINION
AND ORDER
In this insurance coverage declaratory judgment action brought by plaintiff Vanliner
Insurance Company (“Vanliner”), defendants Greg and Martina DerMargosian (collectively
“the DerMargosians,” unless the context otherwise requires) move to quash service of
process and to dismiss this case under Fed. R. Civ. P. 12(b)(2), (4), and (5). Because there
are factual disputes affecting whether service is valid, the court directs that an evidentiary
hearing be convened.1
The DerMargosians contend that they have not been served with the summons and
complaint, and they move to dismiss. Vanliner maintains that it properly served the
DerMargosians under Rule 4(e)(1) and California law that governs substitute service. Rule
1
Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written
opinion” adopted by the Judicial Conference of the United States, this is a “written opinion[]
issued by the court” because it “sets forth a reasoned explanation for [the] court’s decision.”
It has been written, however, primarily for the parties, to decide issues presented in this case,
and not for publication in an official reporter, and should be understood accordingly.
4(e)(1) provides that service can be effected by “following state law for serving a summons
in an action brought in courts of general jurisdiction in the state . . . where service is made.”
Vanliner attempted to serve the DerMargosians in California, where they reside. The
relevant California law governing substitute service provides:
If a copy of the summons and complaint cannot with reasonable
diligence be personally delivered to the person to be served, . . .
a summons may be served by leaving a copy of the summons
and complaint at the person’s dwelling house, usual place of
abode . . . or usual mailing address . . . in the presence of a
competent member of the household or a person apparently in
charge of his or her . . . usual mailing address . . ., at least 18
years of age, who shall be informed of the contents thereof, and
by thereafter mailing a copy of the summons and of the
complaint by first-class mail, postage prepaid to the person to be
served at the place where a copy of the summons and complaint
were left.
Cal. Civ. Proc. Code § 415.20(b) (West 2007). The reasonable diligence requirement is
ordinarily fully satisfied by “two or three attempts at personal service at a proper place.”
Hearn v. Howard, 177 Cal. App. 4th 1193, 1202 (2009) (citation omitted); see also Bonita
Packing Co. v. O’Sullivan, 165 F.R.D. 610, 613 (C.D. Cal. 1995) (applying California law).
“Statutes governing substitute service shall be liberally construed to effectuate service and
uphold jurisdiction if actual notice has been received by the defendant.” Hearn, 177 Cal.
App. 4th at 1201 (emphasis added) (citation omitted). “The serving party bears the burden
of proving the validity of service or good cause for failure to timely serve.” Byers v. Navarro
Cnty., 2011 WL 4471024, at *1 (N.D. Tex. Sept. 27, 2011) (Fitzwater, C.J.) (citing Lisson
v. ING GROEP N.V., 262 Fed. Appx. 567, 569 (5th Cir. 2007) (per curiam)).
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Vanliner retained a process server, Arturo Chayra (“Chayra”). According to Chayra’s
affidavit, he attempted to personally serve the DerMargosians at their residence three times
over a span of two weeks in March 2013. Chayra confirmed with neighbors that the
DerMargosians resided at that address. On April 1, 2013 Chayra returned to the residence
and an adult female answered the door. She refused to give her name or deny that she was
Martina DerMargosian. Chayra handed her the papers and advised her that he was serving
the DerMargosians with summonses and copies of the complaint. The female accepted the
papers. Chayra also avers that he mailed copies of the summons and complaint to the
residence.
The DerMargosians challenge Chayra’s averment that an adult female answered the
door. Martina avers that on April 1, 2013 she was not served with process or given any
documents related to a lawsuit, and that “[n]o other adult female person was at my residence
at any time on that date.” Ds. Reply App. 5. Martina states that only she and her young
daughter were at the residence. She also avers that she did not recall ever seeing mail from
a person named “Arturo Chayra.” The DerMargosians contend that Chayra’s affidavit is
factually incorrect and probably fabricated.
The DerMargosians therefore challenge two elements required for substitute service
under § 415.20(b): that Chayra served either the DerMargosians personally or an adult
member of the household or person apparently in charge at the DerMargosians’ usual mailing
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address; and that the summons and complaint were thereafter mailed to that address.2
Because these material facts are disputed and they turn on witness credibility,3 the court will
convene an evidentiary hearing at which Vanliner must meet its burden of proving that
service was valid.
Accordingly, the court sets the evidentiary hearing on Friday, August 16, 2013 at
11:00 a.m. The court recognizes that it may be less expensive for Vanliner to attempt to
effect service anew rather than incur the expense of bringing a witness to Texas for the
hearing. If it chooses this option, it may advise the court in writing and the court will grant
the DerMargosians’ motion to quash service under Rule 12(b)(2) and (5), deny without
prejudice the motion under Rule 12(b)(4), and permit Vanliner additional time to effect
proper service.
2
There also appears to be a discrepancy regarding the timing of Chayra’s handing the
papers to the unidentified female and his mailing the copy of the summons and complaint.
Section 415.20(b) provides that service is to be mailed after the summons and complaint are
left at the proper address, and that service is deemed complete on the tenth day after mailing.
Chayra avers that he handed the papers to the unidentified female on April 1, but the return
receipt included in Vanliner’s appendix shows a mailing to the DerMargosians on March 30,
2013.
3
This court routinely decides motions on the papers, as permitted by Rule 43(c), but
it does not do so when a controlling credibility question is presented.
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The court notes that the DerMargosians need not appear in person at the hearing if
they do not wish to present their own testimony. By appearing at the hearing through
counsel, the DerMargosians do not waive any of the grounds of their motion.
SO ORDERED.
July 2, 2013.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
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