DN-24-Order-Denying-Motion-to-Declare-Service-Effective

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					                                                                                   Case3:12-cv-03435-RS Document24 Filed10/15/12 Page1 of 4




                                                                          1
                                                                          2
                                                                          3                                 IN THE UNITED STATES DISTRICT COURT
                                                                          4                           FOR THE NORTHERN DISTRICT OF CALIFORNIA
                                                                          5                                        SAN FRANCISCO DIVISION
                                                                          6
                                                                          7   CHRISTOPHER RECOUVREUR,                                  No. CR 12-03435 RS
                                                                          8                    Plaintiff,
                                                                                                                                       ORDER DENYING MOTION TO
                                                                          9       v.                                                   DECLARE SERVICE EFFECTIVE
                                                                         10   CHARLES CARREON,
United States District Court




                                                                         11                Defendant.
                               For the Northern District of California




                                                                              ____________________________________/
                                                                         12
                                                                         13
                                                                         14                                              I. INTRODUCTION
                                                                         15            Plaintiff moves to establish that service has been effective on defendant and to authorize
                                                                         16   substituted service by email. Because plaintiff has not exhausted all possible avenues to effect
                                                                         17   service on a domestic defendant, the motion is denied.
                                                                         18                                               II. BACKGROUND
                                                                         19            Plaintiff seeks a declaratory judgment that his satirical website does not infringe the
                                                                         20   trademark defendant has in his own name. Prior to filing a complaint, plaintiff’s counsel was in
                                                                         21   contact with defendant via email. After filing the complaint, defendant and his wife publicly
                                                                         22   discussed the pending litigation. Plaintiff’s counsel mailed defendant a request for waiver of
                                                                         23   summons to his address in Tucson, Arizona, which defendant did not execute. Instead, the entire
                                                                         24   envelope was mailed back to plaintiff, unopened, inside a second envelope. This same sequence of
                                                                         25   events was repeated after plaintiff filed an amended complaint. At plaintiff’s request, the Court
                                                                         26   issued a summons, and plaintiff hired an Arizona process service company to serve the summons at
                                                                         27   the residential address. On the first visit, the server announced himself and was told “No thank
                                                                         28   you,” and left with the papers. On the second and third visits, nobody answered. The process

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                                                                                    Case3:12-cv-03435-RS Document24 Filed10/15/12 Page2 of 4




                                                                          1   service company then tried to serve the summons and complaint by certified mail, but the package

                                                                          2   was never claimed.

                                                                          3          During this time, defendant contacted the general counsel of Walgreens, plaintiff’s

                                                                          4   employer, stating plaintiff had used Walgreens’ computer equipment or internet access to create the

                                                                          5   allegedly actionable website, and implying he might make Walgreens a party to the litigation under

                                                                          6   a theory of respondeat superior. The demand letter sent to Walgreens contained the same Tucson,

                                                                          7   Arizona address and email address that plaintiff had been using to attempt service on defendant.

                                                                          8          On September 25, 2012, plaintiff’s counsel again emailed defendant a copy of the summons,

                                                                          9   complaint, and amended complaint using both the address listed on defendant’s letterhead and the

                                                                         10   gmail address defendant had used to correspond with counsel for both plaintiff and Walgreens.
United States District Court




                                                                         11   Plaintiff’s counsel requested defendant meet and confer about plaintiff’s intent to file a motion to
                               For the Northern District of California




                                                                         12   declare service effective. Defendant has not responded.

                                                                         13                                           III. LEGAL STANDARD

                                                                         14          Rule 4(e) of the Federal Rules of Civil Procedure governs the methods by which service may

                                                                         15   be effected. Rule 4(e)(1) permits service by any means permitted by the law of the state in which

                                                                         16   the case is pending, or the state in which the defendant resides. Alternatively, Rule 4(e)(2) allows

                                                                         17   service by: (1) personal delivery of the summons and complaint to defendant; (2) leaving a copy of

                                                                         18   each with a person at the defendant’s residence, or (3) leaving a copy of each with an agent

                                                                         19   authorized to accept service. Sections 413.30 and 415.50 of the California Code of Civil Procedure

                                                                         20   authorize substituted service. Section 413.30 allows substituted service “in a manner which is

                                                                         21   reasonably calculated to give actual notice to the party to be served,” and section 415.50 authorizes

                                                                         22   service by publication if the party to be served cannot, “with reasonable diligence” be served in

                                                                         23   another approved manner. Strict compliance with the statutes governing service is essential to

                                                                         24   establish that personal jurisdiction exists over the defendant. Dill v. Berquist Constr. Co., 24 Cal.

                                                                         25   App. 4th 1426 (1994).

                                                                         26                                               IV. DISCUSSION

                                                                         27          Plaintiff has not met his burden of “due diligence” to permit substituted service. Plaintiff

                                                                         28   has mailed the summons and complaint to the residential address at which defendant is thought to


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                                                                                    Case3:12-cv-03435-RS Document24 Filed10/15/12 Page3 of 4




                                                                          1   reside. Plaintiff has also hired a process service company that has made three attempts to leave the

                                                                          2   summons at the residential address. These attempts fall short of the effort required to effect service.

                                                                          3          Plaintiff relies on Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1017 (9th Cir.2002)

                                                                          4   as Ninth Circuit authorization for email service. Rio Props, however, is easily distinguishable from

                                                                          5   the present case. In Rio Properties the defendant was a foreign entity with one United States

                                                                          6   address that housed only its international courier, which was not authorized to accept service. Id. at

                                                                          7   1013. After multiple attempts of conventional service, the Court authorized substituted email

                                                                          8   service under Federal Rules 4(h)(2), pertaining to service of corporations, and 4(f)(3), pertaining to

                                                                          9   foreign defendants. Neither provision applies to this case where the defendant is an individual

                                                                         10   apparently resident in the United States.
United States District Court




                                                                         11          Plaintiff also points to Bein v. Bechtel-Jochim, 6 Cal. App. 4th 1387 (1992) in which the
                               For the Northern District of California




                                                                         12   California Court of Appeal authorized substituted service after three attempts at defendant’s

                                                                         13   residence. There, in contrast to this case, the process server was denied access to the defendant’s

                                                                         14   home by the gate guard, and left the papers with him to deliver to the defendants. Id. at 1392. In

                                                                         15   this case, the defendant’s home is surrounded by a fence and the process server has failed to leave

                                                                         16   the papers at the residence. Similarly, in Travelers Cas. & Sur. Co. of America v. Brenneke, 551

                                                                         17   F.3d 1132, 1134 (9th Cir. 2009), on its fifth attempt at service at defendant’s home, the process

                                                                         18   server announced his presence, said “[y]ou are served” and, held the summons and complaint

                                                                         19   towards the window where the residents of the house could see them before placing them on the

                                                                         20   doorstep. The Ninth Circuit found that the requirements of Rule 4(e)(2) had been satisfied in good

                                                                         21   faith and service was thereby effected. Id. at 1136. Here, as discussed, the process server has made

                                                                         22   no effort to leave the documents at the home in which defendant is thought to reside. Instead it has

                                                                         23   departed with them still in its possession.

                                                                         24          The process server could easily wait outside the fence for defendant to enter or leave the

                                                                         25   residence and could then leave the papers in the defendant’s presence. Alternatively, the process

                                                                         26   server may choose to wait near a location defendant is thought to frequent, such as an office or

                                                                         27   grocery store. If the defendant still refuses to accept the papers, it will be considered sufficient if the

                                                                         28   “server is in close proximity to the defendant, clearly communicates intent to serve court documents,
                                                                              and makes reasonable efforts to leave the papers with the defendant.” Doe v. Qi, 349 F. Supp. 2d
                                                                                                                                                                      NO. CV 12-03435 RS
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                                                                          1   1258, 1275, fn.5 (N.D. Cal. 2004). The defendant need not take physical possession of the papers

                                                                          2   for service to be effected. See, e.g., Errion v. Connell, 236 F.2d 447, 457 (9th Cir. 1956) (service

                                                                          3   sufficient when Sheriff inserted three papers through a hole in the screen door after speaking with

                                                                          4   defendant).

                                                                          5          Because of the due process and personal jurisdiction concerns that arise with respect to

                                                                          6   proper service of a defendant, substituted service by email is not granted out-of-hand. While

                                                                          7   defendant is apparently making service of process difficult for plaintiff, in accordance with our

                                                                          8   traditional notions of due process, plaintiff must redouble efforts at traditional service of process

                                                                          9   before resorting to this Court for authorization of substituted service.

                                                                         10                                               V. CONCLUSION
United States District Court




                                                                         11          For the foregoing reasons, the motion to declare email service effective is denied without
                               For the Northern District of California




                                                                         12   prejudice to renewal upon further efforts to effect service.

                                                                         13
                                                                         14
                                                                         15
                                                                         16   Dated: 10/15/12
                                                                                                                             RICHARD SEEBORG
                                                                         17                                                  UNITED STATES DISTRICT JUDGE

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