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Lahore v. SCME Mortgage Bankers

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


October 23, 2009

MARCO LAHORE, ET AL., PLAINTIFFS,
v.
SCME MORTGAGE BANKERS, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Richard Seeborg United States Magistrate Judge

ORDER AUTHORIZING SERVICE BY DELIVERY TO THE SECRETARY OF STATE

On October 16, 2009, plaintiffs filed what they labeled as an "ex parte application" for an order permitting service to be made on defendant SCME Mortgage Bankers, Inc. by hand delivery of the summons and complaint to the office of the California Secretary of State. In this Court, an ex parte motion is one filed with no notice to other parties, and is permissible only where specifically authorized by statute, Federal Rule, local rule or Standing Order. Civil Local Rule 7-10. Where a party seeks a court order on less than the full 35 days notice ordinarily required, it must seek an order shortening time under Rule 6-2 or 6-3, unless the subject matter is such that a Motion For Administrative Relief under Rule 7-11 is appropriate.

ORDER

Here, despite the "ex parte" label, Plaintiffs filed their motion through the ECF system, thereby giving notice of it to all parties who have appeared in the action. Because the relief plaintiffs seek is appropriate for treatment as a miscellaneous administrative matter, the motion will be deemed as one brought under Rule 7-11.

Plaintiffs' motion is GRANTED. Rule 4(h)(1)(A) of the Federal Rules of Civil Procedure 6 permits service on corporations to be made in any manner prescribed for serving an individual, and Rule 4(e)(1) in turn provides that individuals may be served in any manner permitted under state law. Under California Code of Civil Procedure §416.10(d) and California Corporations Code §1702, where a corporate agent for service of process cannot be located through reasonable diligence, the court may order service be made by hand delivery to the office of the secretary of court state. As Plaintiffs have adequately shown reasonable diligence in their unsuccessful attempts to For the Northern District of California locate an agent for defendant SCME Mortgage Bankers, Inc., service on the secretary of state's office is warranted.

IT IS SO ORDERED.

20091023

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