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ROBERT L. LEVINE, an individual v. JANA DUCHACOVA

November 24, 2010

ROBERT L. LEVINE, AN INDIVIDUAL,
PLAINTIFF,
v.
JANA DUCHACOVA, AN INDIVIDUAL, DEFENDANT.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER GRANTING MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS

Pending before the Court is Defendant's motion to dismiss for insufficient service of process and lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(5) and 12(b)(2).

I. Factual Background

This case involves an alleged agreement between Plaintiff Robert Levine and Defendant Jana Duchacova whereby Levine would "provide Defendant with $111,923.69 for the purpose of investing on Plaintiff's behalf in a property in Bulgaria." (Compl. ¶ 5.) Levine alleges Duchacova breached this agreement by failing to deposit the money as instructed.

Although Levine says he "is informed and believes that Defendant is a citizen of and has lived for many years in Belgium," he attempted to serve Duchacova by substitute service at an address in La Jolla, California: 5559 Bellevue, La Jolla, CA 92037. (Compl. ¶ 5, Doc. No. 3.)

The proof of service says that substitute service was made on a "co-tenant," Valerie Levine, who is Duchacova's daughter and Levine's estranged wife. According to Ms. Levine, her mother does not speak, read, or write English and has lived in Belgium since 1983. Ms. Levine lists her mother's address as: 10 A Rue Du Bois, Jumet, Charleroi, Belgium 6040. Further, Ms. Levine says that the address where service was attempted is a one-room guest house that she rents and lives in with her infant daughter. Duchacova, according to Ms. Levine, has never resided at the La Jolla address, nor has she ever received mail there.

Duchacova argues service at the La Jolla address was improper under both federal and California law. Additionally, she moves to dismiss the case for lack of personal jurisdiction.

II. Legal Standard

Rule 4(e) of the Federal Rules of Civil Procedure governs service on individual defendants. It provides: an individual . . . may be served in a judicial district of the United States by . . . doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e)(2). "Defendants must be served in accordance with [Rule 4], or there is no personal jurisdiction." Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (citation omitted). "Neither actual notice, nor simply naming the person in the caption of the complain, will subject defendants to personal jurisdiction if service was not made in substantial compliance with Rule 4." Id.

Rule 4(e) also provides that an individual may be served by "following state law for serving a summons in an action brought in courts of general jurisdiction in a state where the district court is located or where service is made." Fed. R. Civ. P. 4(e)(1). In California, substitute service on an individual defendant is governed by Cal. Code Civ. P. § 415.20(b), which provides:

[A] summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box.

Here, the issue is whether the La Jolla address qualifies as Defendant's dwelling or usual place of abode under either Rule 4(e)(2)(B) ...


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