United States District Court, Northern District of California, San Jose Division
ORDER REQUESTING SUPPLEMENTAL BRIEFING FOR PLAINTIFF'S MOTION FOR ORDER AUTHORIZING SERVICE OF SUMMONS AND COMPLAINT BY PUBLICATION Re Docket No. 10
HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE
Webpass Inc. sues Aftab Banth, Rick Peters, and Squareplanet LLC for trade secret misappropriation and related claims. On September 12, 2014, Webpass filed the present motion for an order authorizing service of summons and complaint by publication. Dkt. No. 10. Plaintiff requests an order allowing it to serve Defendants by publishing a notice about the pendency of this action in the USA Today. Banth has subsequently filed a Notice and Acknowledgment of Receipt of Summons and Complaint. Dkt. No. 20. This motion is now moot as to Banth. A hearing was initially held on October 21, 2014, then continued to December 16, 2014.
Pursuant to Rule 4(e)(1) of the Federal Rules of Civil Procedure, service upon an individual may be effected in any 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." The same rule applies to service in any judicial district of the United States upon a corporation, partnership, or unincorporated association. See Fed. R. Civ. P. 4(h)(1)(A). Notice 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" in order to comply with due process. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
Pursuant to Rule 4(e)(1), the Court looks to California law to determine the sufficiency of the proposed service of process. California law allows for alternative service under certain circumstances. For example, California law permits service by publication if: (1) "upon affidavit it appears to the satisfaction of the court. . . that the party to be served cannot with reasonable diligence be served in another manner" and (2) "[a] cause of action exists against the party upon whom service is to be made." Cal. Civ. Proc. Code § 415.50(a)(1). Service by publication is disfavored and permitted only "as a last resort." See Donel, Inc. v. Badalian, 87 Cal.App.3d 327, 332(1978).
In regards to the second requirement, Section 415.50(a)(1) requires that the plaintiff provide independent evidentiary support, in the form of a sworn statement of facts, for the existence of a cause of action against each defendant whom service by publication is requested. See Harris v. Cavasso, 68 Cal.App.3d 723, 726 (1977) (holding that Section 415.50(a)(1) requires "an affidavit containing a statement of some fact which would be legal evidence, having some appreciable tendency to make the [the cause of action] appear, for the Judge to act upon before he has any jurisdiction to make the order" authorizing service by publication).
Here, Webpass has failed to satisfy the requirements of Section 415.50(a)(1). Specifically, Webpass has not provided independent evidentiary support, in the form of a sworn statement of facts, for the existence of a cause of action against each defendant whom service by publication is requested. Accordingly, Webpass is ordered to file a supplemental brief, along with the required evidentiary support for the existence of a cause of action against ...