The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
MOTION FOR PRELIMINARY ORDER DENYING PLAINTIFF'S INJUNCTION WITHOUT PREJUDICE [Doc. No. 30]
Currently pending before the Court is Plaintiff Acolyte Technologies Corporation's motion for preliminary injunction. For the reasons set forth below, the Court DENIES Plaintiff's motion without prejudice.
On October 28, 2011, Plaintiff filed the pending motion for a preliminary injunction against all Defendants. [Doc. No. 30.] Prior to the hearing on Plaintiff's motion, the Court issued an order observing that the summons for the first amended complaint was issued on October 12, 2011, but as of January 5, Plaintiff had not served the majority of Defendants. [Doc. No. 37.] The Court therefore vacated the motion hearing, and ordered Plaintiff to file proofs of service evidencing each of the seven remaining Defendants had been properly served with copies of the first amended complaint, summons, and motion for preliminary injunction, if Plaintiff wished to proceed with its motion for injunctive relief. [Id.]
In response, Plaintiff voluntarily dismissed individual defendants Choong Bin Lim, Sook Ja Lim and Ceong Lim, and corporate defendant Asian Import Store, Inc. [Doc. Nos. 38, 39.] Plaintiff also timely filed executed summonses as to Defendants Party 321, Corp. [Doc. No. 40] and Lorenza Pastrana Hernandez [Doc. No. 41], and a notice stating Plaintiff is in the process of serving foreign Defendant Jeja Internal National Corporation, Ltd. via the Hague Convention [Doc. No. 44.] As explained below, the Court denies Plaintiff's motion for injunctive relief because the procedural posture of this action and the various issues with service have largely rendered Plaintiff's request for relief moot or otherwise inappropriate for disposition.
As an initial matter, the pending motion broadly requests the Court to enjoin all Defendants from infringing Plaintiff's products covered by the '232 and '299 patents. [Doc. No. 30, p.1.] This is problematic for several reasons. First, Plaintiff dismissed six named defendants after filing its motion for injunctive relief. Thus, the motion seeks relief against several individuals and entities who are no longer parties to this action. Second, Plaintiff is still in the process of serving foreign Defendant Jeja via the Hague Convention. While the Court appreciates service in this manner is time-consuming, injunctive relief cannot issue against any defendant absent notice (i.e. proper service). FED. R. CIV. PROC. 65(a)(1). Third, the executed summons for corporate Defendant Party 321, Corp. is legally inadequate. Thus, it appears only one of the remaining defendants in this action-Lorenza Pastrana Hernandez-has been properly served. [Doc. No. 41.]
On January 6, Plaintiff returned a purportedly executed summons on behalf of Defendant Party 321, Corp. which indicates Plaintiff's process server effected substitute service on Defendant as permitted by California Code of Civil Procedure section 415.20, by leaving a copy of the first amended complaint, summons, and motion for preliminary injunction with "Jane Doe - Sales Clerk." [Doc. Nos. 40, 42.] On its face, the "executed" summons is entirely deficient.
California Code of Civil Procedure 416.10 governs service on corporations, not section 415.20. Gibble v. Car-Lene Research, Inc., 67 Cal. App. 4th 295, 303 (1998). Under section 416.10, a corporation can be validly served through four basic categories of individuals: "(1) a designated agent for service of process, (2) enumerated officers and other authorized agents of the corporation, (3) a cashier or assistant cashier of a banking corporation, and (4) where the party attempting service cannot with reasonable diligence serve an individual in any other category, the Secretary of State as provided by Corporations Code section 1702." Id. at 303-04. "Jane Doe -Sales Clerk" does not fall within any of these categories.
Here, the proof of service indicates the process server made three unsuccessful attempts to serve Party 321, Corp. at its business address, 321 Winston Street, Los Angeles, California 90013. [Doc. No. 42, p.3-4.] Specifically, the process server declared: "Unable to effect service at given business address. Attempts were made where the building was closed and there was no answer. I made contact with the manager of new tenant XI Co. which has been here one month who stated, servee went out of business 2 months ago." [Id.] A review of the Secretary of State's website for the State of California confirms Party 321, Corp. has been dissolved. Accordingly, not only is it unreasonable for Plaintiff to attempt service by leaving documents with an unidentified woman at an old address,*fn2 but Plaintiff's attempted method of serving a dissolved corporation disregards the applicable statutory guidelines.
California Corporations Code section 2011 governs causes of action against dissolved corporations, and dictates the acceptable methods for service of process on such entities. Section 2011(b) provides:
Summons or other process against [corporations dissolved after January 1, 1992] . . . may be served by delivering a copy thereof to an officer, director or person having charge of its assets or, if no such person can be found, to any agent upon whom process might be served at the time of dissolution. If none of such persons can be found with due diligence and it is so shown by affidavit to the satisfaction of the court, then the court may make an order that summons or other process be served upon the dissolved corporation by personally delivering a copy thereof, together with a copy of the order, to the Secretary of State or an assistant or deputy secretary of state. Service in this manner is deemed complete on the 10th day after delivery of the process to the Secretary of State.
CAL. CORP. CODE §§ 2011(a)(4), (b); see also Penasquitos, Inc. v. Super. Ct., 53 Cal.3d 1180, 1189-90 (1991). Clearly, Plaintiff's attempted substitute service at Defendant's former place of business, on an unidentified sales clerk who has no identifiable connection to Defendant, does not comply with section 2011. Likewise, Plaintiff's effort to mail Defendant a copy of the complaint and summons, and the moving papers at the same invalid address is ineffectual. Accordingly, the Court concludes it is more than likely that Defendant Party 321, Corp. does not have notice of this action nor Plaintiff's request for injunctive relief. In addition, because Plaintiff seeks to prohibit activities by several Defendants who are no longer ...