UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 16, 2008
PUONGPUN SANANIKONE, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT,
PAUL TA, ET AL., COUNTERCLAIM-DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
MEMORANDUM AND ORDER
Presently before the Court is the United State's Motion for Service by Publication of Defendant Nguyen Vo.*fn1 Federal Rule of Civil Procedure 4(e)(1) provides for service of a summons "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made."
Under California law, "[a] summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that...[a] cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action." Cal. Civ. Pro. Code § 415.50(a)(1).
Thus, the affidavit supporting Plaintiff's current Motion must include allegations, based on personal knowledge of the underlying facts, that a cause of action exists against this defendant, or that he is a necessary party to this action. Harris v. Cavasso, 68 Cal. App. 3d 723, 726 (3d Dist. 1977). Because the United States' Motion lacks a proper affidavit including the requisite allegations, it's Motion is DENIED. Defendant and Counterclaim Plaintiff may renew its Motion, should it desire, within ten (10) days of this Order.
IT IS SO ORDERED.