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Sananikone v. United State

February 25, 2009

PUONGPUN SANANIKONE, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT,
v.
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

On December 16, 2008, this Court denied the Government's first motion for service of Counterclaim Defendant Nguyen Vo by publication because the Government's supporting affidavit failed to allege a valid cause of action against the absent party. Presently before the Court is the Government's Renewed Motion, which, for the following reasons, is denied.

BACKGROUND

On October 25, 2007, the Government filed the counterclaim underlying the instant Motion. Through that counterclaim, the Government sought to recover unpaid debts from five Counterclaim Defendants. Only Mr. Vo remains to be served.

Pursuant to Federal Rule of Civil Procedure 4(m), this Court previously granted the Government a 60-day extension of time in which to serve Mr. Vo. The Court's decision was based in part on the declaration of a paralegal with the Tax Division of the United States Department of Justice, Brenda Seegars. According to Ms. Seegars, she had employed a process server in Florida to serve Mr. Vo at his last known address, an endeavor that proved unsuccessful. Ms. Seegars subsequently learned through Mr. Vo's previous employer that Mr. Vo had moved to California.

Counsel for the Government, Michael Pitman, then attempted to locate Mr. Vo by searching through official records of the Internal Revenue Service, westlaw.com's public record databases, and google.com. As a result, Mr. Pitman found seventeen physical addresses and one email address potentially belonging to Mr. Vo. On July 30, 2008, the Government sent letters to each of those addresses, but was again unsuccessful in reaching Mr. Vo.

However, on November 14, 2008, Mr. Pitman received a phone call from a woman claiming to rent one of the properties to which he had sent the July 30 letter. That woman claimed to be party to a lawsuit involving the Vole Trust and further stated that Mr. Vo had recently appeared in court on behalf of that entity.

Mr. Pitman subsequently contacted the Superior Court of California for the County of Sacramento and learned that the Vole Trust was represented by attorney Thomas M. Hogan. On November 17, 2008, by searching westlaw.com's public record databases and google.com, Mr. Pitman found three possible physical addresses for the Vole Trust. He then hired a service company to attempt personal service at all three addresses, which ultimately also proved unsuccessful.

Finally, Mr. Pitman contacted Mr. Hogan by mail to inform him of the legal proceedings against Mr. Vo. On or about December 16, Mr. Hogan contacted Mr. Pitman, but Mr. Hogan was unable to confirm or deny any affiliation between Mr. Vo and the Vole Trust. Nevertheless, Mr. Hogan offered to check his files and forward any appropriate documents to Mr. Pitman. Having heard nothing by December 29, Mr. Pitman again called Mr. Hogan's office at which time he discovered Mr. Hogan would be unavailable until January 5, 2009. Two days later, the Government filed this Renewed Motion Requesting Permission to Serve Mr. Vo by Publication.

STANDARD

Under Federal Rule of Civil Procedure 4(e)(1), a proper service of summons can be made by "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."

Accordingly, California's statute on service by publication governs whether substituted service is proper in this case. California Code of Civil Procedure § 415.50(a)(1) allows service 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."

"For the purpose of service by publication, the existence of a cause of action is a jurisdictional fact." Harris v. Cavasso, 68 Cal. App. 3d 723, 726 (3d Dist. 1977). Additionally, a party seeking leave to serve process by publication must establish that "reasonable diligence" has been exercised to serve process in another manner permitted by California law. Watts v. Crawford, 10 Cal. 4th 743, 749 n.5 (1995). "'The term 'reasonable diligence' ... denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney.'" Id. (citations omitted). "Before allowing a plaintiff to resort to service by publication, the courts necessarily require him to show exhaustive attempts to locate the defendant." Id. (internal quotations and citations omitted). This requirement exists because "it is generally recognized that service by ...


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