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Shepard Johnson v. Chester Mitchell

April 20, 2012

SHEPARD JOHNSON, PLAINTIFF,
v.
CHESTER MITCHELL, ET AL., DEFENDANTS.



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

ORDER

On March 2, 2012, this court granted plaintiff a final 60-day period within which to complete service of process on all defendants, cautioning plaintiff that failure to complete service of process within this period, i.e. by May 1, 2012, would result in a recommendation that the unserved defendants be dismissed from the case. (Dkt. No. 169.) The court explained that this action was originally filed on July 23, 2010, and that although the court had, in light of plaintiff's pro se status, until then liberally allowed plaintiff to amend his complaint and serve new defendants, the action now needed to move forward. (Id.)

With the May 1, 2012 deadline approaching, on April 16, 2012, plaintiff filed a motion for leave to serve two defendants, Rogelio Arosemena and Manuel Berrocal, both citizens of Panama, with process via e-mail. (Dkt. No. 190.) After reviewing the papers in support of the motion, the court concludes that further briefing and oral argument would not be of material assistance in resolving the motion. Accordingly, the motion will be decided on the papers submitted.

BACKGROUND

The background facts related to this action were set forth in detail in the court's March 2, 2012 order and findings and recommendations addressing other motions in this matter. (Dkt. No. 169.) Thus, the court only summarizes the basic facts pertinent to the instant motion.

Defendants Manuel Berrocal and Rogelio Arosemena were first named as defendants on August 24, 2011 in plaintiff's corrected second amended complaint (dkt. no. 80), and continues to be named as defendants in the operative third amended complaint filed on November 6, 2011 (dkt. no. 119). Both defendants are alleged to be citizens of Panama residing in Panama. (Id.)

Plaintiff's declaration in support of the instant motion outlines the efforts plaintiff made to locate and serve defendants Berrocal and Arosemena. Plaintiff states that he knew that both defendants were Panama attorneys. To locate defendant Arosemena's address, plaintiff researched the criminal complaints defendant Arosemena filed in Panama on behalf of other defendants that referenced his address. He then located the websites of defendants Arosemena and Berrocal, which also provided their mailing addresses and e-mail addresses. (Dkt. No. 190 at 3.)

On August 30, 2011, plaintiff served defendants Arosemena and Berrocal via U.S. mail (priority mail) "per CCP 415.30."*fn1 However, neither defendant returned the acknowledgment of receipt of the summons. Subsequently, on September 9, 2011, plaintiff served these defendants via e-mail with delivery receipt requested "per CCP 415.30." Although the delivery receipt of the e-mail was returned confirming that defendants Arosemena and Berrocal received the e-mails, these defendants again did not return the acknowledgment of receipt of the summons. Around November 2011, plaintiff contacted the Clerk of Court to determine whether it would address mail for service of process outside the United States pursuant to Fed. R. Civ. P. 4(f)(2)(C)(ii).*fn2 The Clerk of Court apparently informed plaintiff that it does not perform that service. Plaintiff then decided to pursue service via the Letters Rogatory process. (Dkt. No. 190 at 3.)

Plaintiff further states that after the court issued its March 2, 2012 order requiring service of process to be completed within 60 days, he concluded that the Letters Rogatory process would take too long (6 months to one year) and instead decided to attempt service pursuant to "CCP 415.40."*fn3 According to plaintiff, he served defendants Arosemena and Berrocal on March 19, 2012 "according to FRCP Rule 4(f)(2)(c)(ii) and CCP 415.40" by using Fed Ex international airmail requiring a return receipt. He attaches tracking documentation indicating that the service documents were delivered and signed for on March 21, 2012 at the defendants' respective offices. Furthermore, plaintiff asserts that, on March 25, 2012, he again confirmed with the Clerk of Court that it does not "address and send envelopes as described in rule 4(f)(2)(C)(ii) for service of process for foreign defendants." (Dkt. No. 190 at 3-4.)

Plaintiff believes that service on defendants Berrocal and Arosemena was completed on April 2, 2012 (March 21, 2012 plus the 10 days pursuant to Cal. Civ. Proc. Code § 415.40).*fn4 Nevertheless, out of abundance of caution, plaintiff requests leave to serve both defendants by e-mail pursuant to Fed. R. Civ. P. 4(f)(3).

DISCUSSION

Rule 4(f) of the Federal Rules of Civil Procedure outlines the methods by which an individual in a foreign country may be served with process:

Unless federal law provides otherwise, an individual -- other than a minor, an incompetent person, or a person whose waiver has been filed -- may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service ...


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