IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 10, 2012
STEVEN G. DUNMORE, ET AL., PLAINTIFFS,
JEREMY A. DUNMORE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge Ggh/076
On January 13, 2012, this court ordered plaintiff to file and serve his second amended complaint within twenty-eight days. (Dkt. no. 19.) On April 4, 2012, the district court granted plaintiff ten days after that order in which to file a second amended complaint. (Dkt. no. 25.) The court's order requiring timely serve and joint status report requires that service of process be completed within 120 days of October 31, 2011. (Dkt. No. 4.) Plaintiff has filed his second amended complaint; however, he has also filed an "ex parte application for order allowing service of summons by publication and by other means." He seeks to serve approximately fourteen defendants, six individuals and eight entities, by publication, and has attached declarations supporting his failed attempts at personal service of these defendants.
A plaintiff may serve an individual by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Fed. R. Civ. P. 4(e)(1). Service of corporations, partnerships or associations are governed by Rule 4(h). In California, "[a] summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: (1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action...." Cal. Civ. Proc. Code § 415.50(a).
A determination that a claim exists against the unserved defendants, that they are necessary or proper parties, or that there is federal subject matter jurisdiction in this case would be premature at this stage of the proceedings. Therefore, plaintiff's application will be denied without prejudice to its renewal after a dispositive motion has been filed and decided.
Accordingly, IT IS ORDERED that: Plaintiff's ex parte application for order allowing service of summons by publication and by other means, filed April 16, 2012, (dkt. no. 27), is denied without prejudice.
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