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Rohit Biochem Pvt. Ltd v. Arya Group

June 9, 2009

ROHIT BIOCHEM PVT. LTD, ET AL., PLAINTIFFS,
v.
ARYA GROUP, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiffs' motion for entry of default judgment against defendants Arya Group, Inc. and Rayan Laxmanan, was heard on April 23, 2009. After hearing, and upon review of the motion and the supporting documents, and good cause appearing, the court issues the following findings and recommendations.

BACKGROUND

On August 2, 2007, plaintiff filed the underlying complaint in this action. The complaint was amended on October 27, 2008, naming defendants Arya Group, Inc. and Rayan Laxmanan. The amended complaint alleges that plaintiffs had a written agreement whereby defendants would loan them $2 million for business ventures in exchange for plaintiffs' advance of $100,000. The agreement provided that defendants would repay the $100,000 to plaintiffs if they failed to provide the loan. Defendants failed to fund the loan and did not return the $100,000, but did eventually provide a check for $100,000 drawn on insufficient funds. Thereafter, plaintiffs brought suit for breach of contract, fraudulent deceit, and common counts. The action is based on diversity.

The summons and complaint were served on both defendants by substituted service on November 24, 2008, with follow up service by U.S. mail on both defendants on November 25, 2008. Fed. R. Civ. P. 4(e)(2); 4(h). Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985) (default judgment void without personal jurisdiction). Defendants failed to file an answer or otherwise appear in this action. On December 18, 2008, the clerk entered default against defendants the Arya Group and Rayan Laxmanan.

The notice of hearing on the motion for default judgment were served by mail on defendants at their last known address. Defendants filed no opposition to the motion for entry of default judgment and did not appear at the hearing. Plaintiffs seek an entry of default judgment in the amount of $100,000 plus costs, attorneys' fees, and interest from the date of judgment until paid.

DISCUSSION

I. Service of Process

After much deliberation and research, the court concludes that service of process was effected in accordance with the requirements of Fed. R. Civ. P. 4 (e)*fn1 which governs federal service of process upon individuals, and 4(h), which governs service on corporations and partnerships.*fn2 "Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied. '[S]ervice of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.' Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-445 [] (1946). Thus, before a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant and a constitutionally sufficient relationship between the defendant and the forum." Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987).

Here, the returns of summons indicate that the process server first attempted personal service three times at the given home address for defendants in Davis. The first two times there was no response. On the third try, the current occupant answered the door and said the servees were unknown at that address. (Docket #s 27, 28.) Both defendants Laxmanan and Arya Group were then served by substituted service on Gustavio Bermudez, the owner of "Post Marks," a mail box drop, which was provided as defendants' business address. This service was followed with mail service on both Laxmanan and Arya Group at the same address as the mail box drop.

Under California law, substituted service at a private or commercial mailbox is proper if the mailbox is considered the party's usual mailing address. Ellard v. Conway, 94 Cal.App.4th 540, 546, 114 Cal.Rptr.2d 399, 403 (2001). As in Ellard, "no facts suggest personal or substitute service was available at any other address or on any other individual." Id. Bonita Packing Co. v. O'Sullivan, 165 F.R.D. 610, 614 (C.D. Cal. 1995), which holds that substitute service at a private post office box is improper, was distinguished because it based its holding on the fact that there was an alternative means of service, the attorney for the defendants. Id. In this case, the process server attempted personal service three times before substituted service was made. Bonita, 165 F.R.D. at 613 (two or three attempts at personal service sufficient). There was no other available address for personal or substitute service, and defendants are not represented by counsel. Furthermore, it is true that if the California legislature intended to include private mailboxes in its exclusion of post office boxes, it would not have used the language "United States Postal Service" preceding "post office box" in Cal. Civ. Proc. Code § 415.20(b). Burrows v. City of League City, Texas, 985 F. Supp. 704, 706 (S.D.Tex. 1997).

The court finds that service on both defendants was proper.

II. Relief Requested

Entry of default effects an admission of all well-pleaded allegations of the complaint by the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 1977). The court finds the well pleaded allegations of the complaint state a claim for which relief can be granted. Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976). The memorandum of points and authorities and affidavits filed in support of the motion for entry of default judgment also support the finding that plaintiffs are entitled to the relief requested. There are no policy ...


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