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Falco v. Nissan North Am., Inc.

United States District Court, C.D. California

December 12, 2013

KOBE FALCO, individually, and on behalf of a class similarly situated individuals, Plaintiff,
v.
NISSAN NORTH AMERICA INC., NISSAN MOTOR CO.LTD, a Japanese Company, Defendants

Page 1072

For Kobe Falco, individually, and on behalf of a class similarly situated individuals, Plaintiff: Mark P Pifko, Natasha Mehta, Roland K Tellis, LEAD ATTORNEYS, Baron and Budd PC, Encino, CA; Christopher Swanson, Strategic Legal Practices, Los Angeles, CA; Cody R Padgett, Jordan L Lurie, Capstone Law APC, Los Angeles, CA; Dara Tabesh, Erotech Law Group PC, San Francisco, CA; Karen Emily Nakon, Payam Shahian, Ramtin Shahian, Strategic Legal Practices APC, Los Angeles, CA.

For Alfredo Padilla, Joel Seguin, Roberto Galvan, Plaintiffs: Mark P Pifko, Natasha Mehta, Roland K Tellis, LEAD ATTORNEYS, Baron and Budd PC, Encino, CA; Karen Emily Nakon, Strategic Legal Practices APC, Los Angeles, CA.

For Nissan North America Inc, Defendant: James L Nelson, Sedgwick LLP, Los Angeles, CA; Jia-Ming Shang, Nora E Wetzel, Paul J Riehle, Sedgwick LLP, San Francisco, CA.

OPINION

DEAN D. PREGERSON, United State District Judge.

Page 1073

ORDER DENYING DEFENDANT'S MOTION TO DISMISS UNDER RULES 12(B)(5) AND (4)(c) [DKT No. 42]

Presently before the court is Defendant Nissan Motor Co., Ltd's (" Nissan-Japan" ) Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(5) and 4(c). Having considered the parties' submissions and heard oral argument, the court now adopts the following order.

I. Background

This case involves a putative class action lawsuit brought by consumers of certain Nissan automobiles against Nissan-Japan and Nissan North America (" Nissan-America" ). Nissan-Japan asserts in the instant motion that Plaintiffs have failed to effectively serve Nissan-Japan.

This court previously granted a motion by Nissan-Japan to dismiss for inadequate service of process. (See DKT No. 52.) That order was granted on the grounds that, in an attempt made on June 27, 2013 to serve Nissan-Japan (purportedly via substitute service on an executive of Nissan-Japan's subsidiary, Nissan-America), Plaintiffs failed to serve a summons along with their First Amended Complaint, as required by Fed.R.Civ.P. 4(c)(1).

Plaintiffs made a subsequent attempt to serve Nissan-Japan, again via its subsidiary Nissan-America, on August 8, 2013, this time including a summons. (DKT No. 35.) The proof of service submitted to the court stated that the following person was served:

a. Defendant (name): Colin Dodge, Chairman, Management Committee-Americas, Executive Vice President, and Chief Performance Officer, Nissan North America, Inc, which is general manager of Nissan Jid'osha Kabushiki Kaisha d/b/a Nissan Motor, Co., and
b. Other: Larry Okuneff, Claims Manager Apparently in Charge on Behalf of Colin Dodge, Chairman."

(Id. ¶ ¶ 2(a) and 2(b).)

The proof of service indicates that the service was accomplished via substitute service, by (1) leaving copies with a person apparently in charge of the office of the place of business of the person to be served and (2) by mailing a copy addressed to Colin Dodge (with the same description as quoted above). (Id. ¶ 4(b)(2)-(5).) The

Page 1074

proof of service leaves unchecked a box with the text: " due diligence: I made at least (3) attempts to personally serve the defendant." ) (Id. ¶ 4(b)(6)).

In support of its motion to dismiss, Nissan-Japan submitted a declaration by Larry Okuneff, the Nissan-America claims manager who received Plaintiffs' papers. Okuneff stated in the declaration that he is not authorized to accept service of process for Colin Dodge or Nissan-Japan. (Declaration of Larry Okuneff in Support of Motion ¶ 4.) Okuneff also stated that, upon briefly reviewing the papers handed to him by a process server, Okuneff told the process server that he would " only accept the papers on behalf of [Nissan-America] and ask him to write on the papers that I was only accepting the papers for [Nissan-America]." (Id. ¶ 5.) Accordingly, according to Okuneff, the process server wrote " For Nissan North America Only" on the summons. (Id. Ex. I.)

II. Legal Standard

" [S]ervice of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served." Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-445, 66 S.Ct. 242, 245-246, 90 L.Ed. 185 (1946). " Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987). Accordingly, Federal Rule of Civil Procedure 12(b)(5) provides that insufficient service may be a basis for dismissal of a complaint. Once service is challenge, the plaintiff bears the burden of establishing that service was valid. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).

Requirements for the contents and manner of service are established by Rule 4. Under Rule 4(h)(1), a corporation, whether foreign or domestic, must be served in a judicial district of the United States either: " (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process." Rule 4(e)(1), in turn, provides, inter alia, that process may be served in accordance with " 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." The applicable state law is described in the following section.

III. Discussion

A. Service on Nissan-America as a General Manager of Nissan-Japan

California law provides that service of process may be effected on a corporation by, among other means, delivering a copy of the summons and the complaint to " a general manager" of the corporation. Cal. Code of Civ. Proc. § 416.10(b). California courts have interpreted " general manager" to " include[] any agent of the corporation 'of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made.'" Gibble v. Car-Lene Research, Inc., 67 Cal.App.4th 295, 313, 78 Cal.Rptr.2d 892 (1998), quoting Eclipse Fuel Engineering Co. v. Superior Court, 148 Cal.App.2d 736, 745-46, 307 P.2d 739 (1957). Plaintiffs assert that Nissan-America qualifies as a " general manager" ...


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