United States District Court, N.D. California
ORDER GRANTING LEAVE TO SERVE SUMMONS UPON DEFENDANT BY PUBLICATION AND DENYING AWARD OF COSTS FOR REFUSAL TO WAIVE SERVICE
Re: Dkt. No. 16.
JOSEPH C. SPERO, Chief Magistrate Judge.
Re: Dkt. No. 16
Plaintiffs Scott Felix and Patricia Shuey filed a Motion for Leave to Serve the Summons upon Defendant by Publication and Award of Costs for Refusal to Waive Service ("Motion"). In the Motion, Plaintiffs ask the Court to allow service upon Defendant Karin Anderson by publication, pointing to evidence that due to Defendant's intentional evasion of service, they have been unable to serve Defendant despite extensive efforts. Plaintiffs further request that the Court award costs incurred as a result of Defendant's refusal to waive service. A hearing on the Motion was held on February 6, 2015. For the reasons stated below, the Motion is GRANTED in part and DENIED in part.
On August 21, 2014, Plaintiffs filed the Complaint in this matter bringing claims including fraud, constructive fraud, and conversion. The Complaint alleges that Defendant-Patricia's sister-agreed to manage Patricia's real property, finances, and family trust for Plaintiffs' benefit, but later sold Patricia's house in California $200, 000 under market value and used the trust's funds to buy a house in Maryland, near where Defendant lived-without discussing any of these decisions with Patricia first. See Complaint at 3-4.
Plaintiffs' counsel declares that on September 19, 2014, "after investigation into the whereabouts of defendant, " the summons and complaint were provided to One Legal Online Court Services ("One Legal") for personal service upon Defendant. See Decl. of Richard Sax in Supp. of Motion for Leave to Serve the Summons upon Defendant by Publication and Award of Costs for Refusal to Waive Service ¶ 3 ("Sax Decl.").
In a Declaration of Diligence, One Legal's Sarah Decker enumerates ten separate attempts to serve Defendant at 7007 Woodland Avenue in Tahoma, Maryland-the address listed as Defendant's "Home" in the Declaration of Diligence. See Sax Decl., Ex. 1. In particular, Decker states that on September 28, 2014, she "spoke with a woman who states her name is Patty' [and that Defendant] was not home, " but "server believes the lady is lying and this was defendant, " and the lady refused to accept the papers. See id. Decker states that later, on October 27, 2014, she "received [a] call from Karin Anderson [who] confirmed that she resides at address" and that "someone tried to serve her papers from CA one time and she told them it wasn't her." See id. According to Decker, in that same conversation, "Ms. Anderson also informed server that she goes to the Senior Funhouse' on Mon/Wed/Fri and that she will call to set up meeting." See id. Decker's declaration, signed November 4, 2014, does not refer to any other phone calls with Defendant. See id.
Plaintiffs' counsel states that on November 18, 2014, he received a phone call from an attorney with a Maryland office address who said that he represented Karin Anderson and requested that Mr. Sax provide him with the summons and complaint in this action. See Sax Decl. ¶ 6. On November 19, 2014, Plaintiffs' counsel emailed the attorney the summons and complaint in this action as well as a state court action and asked how Defendant wanted to proceed. See Sax Decl., Ex. 2 (November 19, 2014, Email to Sean R. Day). The Court's record contains no response to the email.
According to Plaintiffs' counsel, on December 9, 2014, he received a letter from an attorney with a San Francisco office address stating that her office represents Defendant. See Sax Decl. ¶ 8. On December 12, 2014, Plaintiffs' counsel mailed the San Francisco attorney-Jean L. Bertrand-the pleadings for this action as well as a state court action, a notice and acknowledgment of receipt under Cal. Code Civ. Proc. § 415.30, and a request to waive service. See Sax Decl., Ex. 3 (December 12, 2014, Letter to Jean L. Bertrand). On December 19, 2014, Jean L. Bertrand faxed Plaintiffs' counsel a letter confirming receipt of the mailed items and stating, "We are not authorized to accept service on behalf of Karin Anderson." See Sax Decl., Ex. 4 (December 19, 2014, Bertrand's Faxed Letter to Mr. Sax). The letter from Bertrand carried the notation "cc via email:...Karin Anderson." See id.
III. REQUEST FOR SERVICE BY PUBLICATION
A. Legal Standard
Service upon an individual defendant in a judicial district of the United States may be effected pursuant to the state law where the district court is located or where service is made. See Fed.R.Civ.P. 4(e)(1). Under California law, service by publication is permissible when:
(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 ...