Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carson v. Griffin

United States District Court, Ninth Circuit

May 31, 2013

FLETCHER CARSON, Plaintiff,
v.
WALSH GRIFFIN, et al., Defendants.

ORDER GRANTING IN PART PLAINTIFF'S MOTION TO ALLOW ALTERNATE SERVICE

KANDIS A. WESTMORE, Magistrate Judge.

Plaintiff Fletcher Carson, who proceeds pro se and has paid the filing fee, filed the complaint in this case on February 6, 2013. The Court denied Plaintiff's Motion to Allow Alternate Service on Defendants without prejudice on April 16, 2013. Plaintiff filed a second Motion to Allow Alternate Service of Defendants on April 22, 2013. Plaintiff asserts that he has sent all of the Defendants registered emails containing all of the service documents. The emails were sent through a service called RPost Holdings, which, according to Plaintiff, returns an acknowledgement that the recipient's email inbox received the email. For the following reasons, the motion is granted in part.

A. Service on Foreign Individuals and Business

Plaintiff wishes to serve foreign individuals, including Ivan Ahmed Azziz, a "broker located in Dubai"; Daniel Okwudili Nwankwo, Azziz's attorney; Cisse Abdoulaye, an agent in Dubai; and Ben Aka, another agent in Dubai, and Walsh Griffin, a person living in Ireland.[1] See Comp'l at 3, 6-7. Plaintiff also wishes to serve a foreign business, Walsh Capital Group, which is located in Ireland. Id. at 3.

Federal Rule of Civil Procedure 4(f) ("Serving an Individual in a Foreign Country") authorizes service of process on an individual in a foreign country by any "means not prohibited by international agreement, as the court orders."[2] A foreign business can be served in the same manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(c)(1). Fed.R.Civ.P. 4(h)(2). A method of service of process must comport with constitutional notions of due process, and must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Rio Properties, Inc. v. Rio Int'l Interlink , 284 F.3d 1007, 1016 (9th Cir. 2002).

Ireland is a member of the Hague Convention, but Dubai is not. See

http://www.hcch.net/index_en.php?act=conventions.status&cid=17. Use of the Hague Convention procedures is mandatory if available at the place of service, but does not apply if, as in this case, the address of the person or business to be served with the document is not known. RPost Holdings, Inc. v. Kagan , 2:11-CV-238-JRG, 2012 WL 194388 *1-2 (E.D. Tex. Jan. 23, 2012). The Court has conducted a search, but has located no authority holding that international agreement prohibits service by email in either Dubai or Ireland. Thus, the Court must determine whether Plaintiff's attempt to serve these foreign individuals and business is reasonably calculated, under all the circumstances, to apprise them of the action and give them an opportunity to respond.

Plaintiff wishes to serve Ivan Ahmed Azziz, a broker located in Dubai, by registered email to several email addresses through which he corresponded with Azziz. Previously, the Court found that Plaintiff's showing with respect to service on Azziz by registered email was insufficient for the following reasons: Plaintiff did not explicitly state that he communicated with Azziz through the email addresses, and, the column of the receipt authentication document labeled "opened" was blank. Plaintiff has now remedied the first defect. He now states that he communicated with Azziz hundreds of times through the email addresses. As to the second, Plaintiff has explained that, with respect to the registered email service he is using, there is a delay after the email is sent and before the receipt authentication is sent back to the sender. If the email is opened within that delay period, the "opened" column will indicate that the email has been opened. Otherwise, the "opened" column will be blank. The system does not continue to query the recipient to determine whether the email is later opened. The Court is satisfied with this explanation. Accordingly, Azziz is deemed served.

Plaintiff also seeks to serve Daniel Okwudili Nwankwo, Azziz's attorney; Cisse Abdoulaye, an agent in Dubai; and Ben Aka, another agent in Dubai, via the registered emails to Azziz's email addresses. Plaintiff has not stated that he has communicated with these individuals via email to Azziz's email addresses. Instead, Plaintiff argues that these individuals are tied to Azziz. This is insufficient for the purposes of service, as Plaintiff's emails to Azziz's email addresses will not apprise Azziz's attorney and agents of this lawsuit. The Court does not deem these individuals served.

Next, Plaintiff seeks to serve Walsh Griffin, whom he claims is an individual living in Ireland, through the email addresses info@walshcapital.org and investment@walshcapital.org, and Griffin's business, Walsh Capital Group, through the same email addresses. Plaintiff has now explained that he corresponded many times with Walsh Griffin through these emails. Plaintiff also seeks to serve the business, Walsh Capital Group, through the same email addresses. As the Court wrote in its previous order, it is reasonable to assume that a business checks, or ought to check, an email address that is listed on its website. Accordingly, the Court deems Walsh Griffin and Walsh Capital Group served.

II. Service on Domestic Individuals

Plaintiff seeks to serve the following individuals living in the United States: Kelvin Don, Priscilla Ellis, John Kagose, and Kenietta Johnson. See Comp'l at 2-3. Plaintiff also seeks to serve the following businesses based in the United States: Salvtore Financial Agency, KVP International Consultants, KVP International Trades, [3] and Vicken International Traders LLC. Id.

Federal Rule of Civil Procedure 4(e)(1) provides that "an individual... may be served in a judicial district of the United States 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." As this Court is located in California, service of process is governed by California law. Section 415.30 of the California Code of Civil Procedure provides that service may be made by first-class mail to the person to be served. The sender must mail a copy of the summons and complaint to the person to be served, together with two copies of the notice and acknowledgement set out in section 415.30(b), and a return, postage-paid envelope.[4] Service is complete when the acknowledgment is returned to the sender.

Here, Plaintiff states that mail containing a number of documents was delivered to Priscilla Ellis as CEO of KVP International Consultants, KVP International Consultants, and Kenietta Johnson and John Kagose as employees of KVP International Consultants.[5] See Mot. at 6. Specifically, Plaintiff states that he sent "2 copies of Waiver of the Service of Summons with a self-addressed, stamped envelope for one copy to be sent back to Plaintiff." Id. But it is unclear whether this document Plaintiff refers to is the notice required under Section 415.30(b). It is unlikely, because Defendants would not be waiving service; rather, they would be accepting service by mail. In any case, Plaintiff does not state that any acknowledgments of receipt were returned to him. Accordingly, these individuals and business have not been served under Section 415.30. Plaintiff may cure this defect by ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.