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Moore v. Nguyen

United States District Court, Ninth Circuit

January 27, 2014

RONALD MOORE, Plaintiff,
v.
DINH NGUYEN, et al., Defendants.

ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MTION FOR SERVICE BY PUBLICATION

SHEILA K. OBERTO, Magistrate Judge.

I. INTRODUCTION

On December 20, 2013, Plaintiff Ronald Moore ("Plaintiff") filed an ex parte motion to serve the summons and complaint on Defendant Dinh Ngyuen and Nhien Le Nguyen ("Nguyen Defendants") by publication. (Doc. 9.)[1] The Court has reviewed the motion and all supporting documentation and finds the matter suitable for decision without argument pursuant to the Court's Local Rule 230(g). As such, the hearing set for January 29, 2014, is VACATED. For the reasons set forth below, Plaintiff's motion for service by publication of the Nguyen Defendants is DENIED without prejudice.

II. BACKGROUND

Plaintiff filed this action pursuant to the Americans with Disability Act of 1990 ("ADA"), alleging he encountered barriers at El Rodeo Mexican Restaurant in Clovis, California, which violated his rights under the ADA. He contends that the Nguyen Defendants own the real property on which the restaurant is located.

Plaintiff has attempted service on the Nguyen Defendants at their residence in San Jose, California, on nine different days: September 15, 22, and 29, 2013; November 13, 14, 21, 26, and 29, 2013; and December 12, 2013. (Doc. 9-1, 2:11-27; Doc. 9-6, Lowry Decl., ¶¶ 3-6.) On the third attempt at service, on September 29, 2013, an Asian male resident who refused to give his name, stated he did not know the Nguyen Defendants. (Doc. 9-6, Lowry Decl., ¶ 3.) Plaintiff contends that he has verified via a skip trace that the address where he has been attempting service is, in fact, the correct mailing address for the Nguyen Defendants. Plaintiff maintains he has been unable to identify any other addresses for the Nguyen Defendants that would be deemed effective for purposes of service of process.

Plaintiff's process server made a seventh failed attempt at service on November 26, 2013. Plaintiff then requested the process server "stake out at the Nguyen Defendant[s'] residence" on November 29, 2013, from 6:00 a.m. to 9:00 a.m. During the "stake out" on November 29, 2013, the process server noted people were present inside the residence, but he was unable to complete personal service. The process server indicated no one answered the door, but the upstairs blinds were opened while he was observing the house, and he noted he believed someone was home but evading service. (Doc. 9-7, p. 1, "Declaration of Non Service.").

On December 12, 2013, Plaintiff again requested that the process server "stake out at the Nguyen Defendants' residence." While the process server was able to detect the presence of people in the house, he was unable to effect service. The server noted in his "Declaration of Non Service" (Doc. 9-7, p. 1) that two teenagers came out to the mailbox, but when he tried to contact them, they ran back into the house and would not answer the door. On that same day, the process server approached an unidentified female who appeared to be picking up her daughter at the residence; the process server asked for her name, but she refused and indicated she did not live at the residence. (Doc. 9-7, p. 1.) The process server stated that others came and went from the residence, but everyone refused to speak with him. (Doc. 9-7, p. 1.)

III. DISCUSSION

Plaintiff seeks an order to permit him to serve the Nguyen Defendants by publication rather than by other means such as personal service. Pursuant to Federal Rule of Civil Procedure 4(e), service upon an individual defendant may be effected in any judicial district of the United States pursuant to the law of the state in which the district court is located or in which service is effected. See Fed.R.Civ.P. 4(e)(1). Service by publication is permissible under California law under certain circumstances:

(a) 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...
(1) A cause of action exists against the party upon whom service is to be made or he or she is necessary or proper party to the action.

Cal. Code Civ. Proc. § 415.50(a). The central question for the Court is whether Defendant "cannot with reasonable diligence be served in another manner" pursuant to California law. Id.

In determining whether a plaintiff has exercised reasonable diligence, courts examine whether the affidavit required by the statute sets forth that the plaintiff "took those steps a reasonable person who truly desired to give notice would have taken under the circumstances." Donel, Inc. v. Badalian, 87 Cal.App.3d 327, 333 (1978). "The term reasonable diligence'... denotes a thorough systematic investigation and inquiry ...


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