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Metropolitan Life Insurance Co. v. Deluca

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 24, 2009

METROPOLITAN LIFE INSURANCE COMPANY, PLAINTIFF,
v.
KRISTA DELUCA A/K/A KRISTA CORRIEA A/K/A KRISTA H. OWEN, DEFENDANT,

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Presently before the Court are Plaintiff's Motion for Service by Publication and Motion for Extension of Time in Which to Serve.*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). "When substituted or constructive service is attempted, strict compliance with the letter and spirit of the statutes is required." Olvera v. Olvera, 232 Cal. App. 3d 32, 41 (4th Dist. 1991).

The affidavits supporting Plaintiff's current Motion for Service by Publication must include allegations illustrating, based on personal knowledge of the underlying facts, that a cause of action exists against this Defendant and that Plaintiff was reasonably diligent in attempting service in another manner. Harris v. Cavasso, 68 Cal. App. 3d 723, 726 (3d Dist. 1977). Citation to the previously filed Complaint is insufficient to establish a cause of action. See id. Moreover, Plaintiff's counsel, the only affiant before the Court, has failed to demonstrate the requisite personal knowledge of the facts underlying either that Complaint or the actions taken by third parties hired to conduct the investigation into Defendant's whereabouts.

Accordingly, because Plaintiff has failed to submit proper supporting documentation, it's Motion for Service by Publication is DENIED. For the same reasons, Plaintiff's Motion for Extension of Time is DENIED as well. Plaintiff may (but is not required to) file a renewed motion, not later than ten (10) days after the date this Memorandum and Order is filed electronically. If no renewed motion is filed within said ten (10) day period, this case will be dismissed without leave to amend.

IT IS SO ORDERED.


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