UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 22, 2011
ECTEON CONTRACT TECHNOLOGY,
SECURE INTERNET COMMERCE NETWORK, INC. ET AL.,
The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING EX PARTE APPLICATION FOR ORDER TO SERVE DEFENDANT SECURE INTERNET NETWORK, INC. COMMERCE BY SERVICE ON THE CALIFORNIA SECRETARY OF STATE
Plaintiff filed an ex parte application to serve Defendant Secure Internet Commerce Network Inc. by service on the California Secretary of State. Secure Internet Commerce Network Inc. is a Nevada corporation with its principal place of business in this state. (Compl. at 1-2.)
Section 2111(a) of California Corporations Code, which provides for service of foreign corporations by service on the California Secretary of State, states in pertinent part:
If the agent designated for the service of process is a natural person and cannot be found with due diligence at the address stated in the designation or if the agent is a corporation and no person can be found with due diligence to whom the delivery authorized by Section 2110 may be made for the purpose of delivery to the corporate agent, or if the agent designated is no longer authorized to act, or if no agent has been designated and if no one of the officers or agents of the corporation specified in Section 2110 can be found after diligent search and it is so shown by affidavit to the satisfaction of the court, then the court may make an order that service be made by personal delivery to the Secretary of State . . ..
Therefore, "as a condition precedent to the issuance of an order for such substituted service" a plaintiff's affidavit must establish that "the corporation cannot be served with the exercise of due diligence in any other manner provided by law." Batte v. Bandy, 165 Cal. App. 2d 527, 535 (1958).
Based on the affidavits filed in support of the ex parte application it appears that Plaintiff has exercised due diligence but has been unable to serve Defendant Secure Internet Commerce Network Inc. by any other means. Accordingly, Plaintiff's ex parte application for substitute service is GRANTED.
IT IS SO ORDERED.
HON. BARBARA L. MAJOR UNITED STATES MAGISTRATE JUDGE
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