United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION TO QUASH
COMPLAINT FOR IMPROPER SERVICE AND TERMINATING MOTIONS [RE:
LABSON FREEMAN, UNITED STATES DISTRICT JUDGE
Wireless LLC (“Redzone”), a Maine corporation,
moves to quash the complaint in this declaratory judgment
action for improper service. See generally Mot.
Netgear, Inc. (“Netgear”), a California
corporation, opposes the motion. See generally
Opp'n, ECF 19. The Court heard argument on this motion
and on Redzone's pending motion to dismiss on April 6,
2017. For the reasons discussed herein, the Court GRANTS
Redzone's motion to quash service and TERMINATES the
motion to dismiss WITHOUT PREJUDICE.
Court lacks jurisdiction over defendants who have not been
properly served. SEC v. Ross, 504 F.3d 1130, 1138-39
(9th Cir. 2007). Accordingly, Federal Rules of Civil
Procedure 12(b)(4) and 12(b)(5) permit a court to dismiss an
action for insufficiency of service of process. Fed.R.Civ.P.
12(b)(4)-(5). Rule 12(b)(4) enables the defendant to
challenge the substance and form of the summons, and 12(b)(5)
allows the defendant to attack the manner in which service
was, or was not, attempted. When the validity of service is
contested, the burden is on the plaintiff to prove that
service was valid under Rule 4. Brockmeyer v. May,
383 F.3d 798, 801 (9th Cir. 2004). If the plaintiff is unable
to satisfy this burden, the Court has the discretion to
either dismiss the action or retain the action and quash the
service of process. Lowenthal v. Quicklegal, Inc.,
No. 16-cv-3237, 2016 WL 5462499, at *14 (N.D. Cal. Sept. 28,
2016). “Dismissals for defects in the form of summons
are generally disfavored.” U.S.A. Nutrasource, Inc.
v. CNA Ins. Co., 140 F.Supp.2d 1049, 1052 (N.D. Cal.
November 4, 2016, Netgear, through a process server,
attempted to serve Redzone at 91 Camden Street, #300,
Rockland, Maine. Mot. 2, ECF 10; Ex. B to Mathur Decl. ISO
Opp'n to Mot. Quash (“Proof of Service”), ECF
19-3. The parties agree that the process server handed a copy
of the summons and complaint in this action to Jimmy Hannan,
a Redzone employee. Mot. 2; Opp'n 2.
Federal Rule of Civil Procedure 4(h), Netgear may demonstrate
that service was proper under either California or Maine law,
or pursuant to Federal Rule (4)(h)(1)(B). Fed.R.Civ.P. 4(h)
(allowing a plaintiff to serve corporation in a judicial
district of the United States in the manner prescribed by
Rule 4(e)(1) for serving an individual or “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 and-if the agent is one authorized by statute and the
statute so requires-by also mailing a copy of each to the
defendant”). The latter is inapplicable, as neither
party contends that Mr. Hannan was an “officer, a
managing or general agent, or any other agent authorized by
appointment or by law to receive service of process” on
behalf of Redzone. Thus, for service to be proper, it must
have complied with either California or Maine law.
the California Code of Civil Procedure, a summons may be
served on a corporation by delivering a copy of the summons
and the complaint to (1) “the person designated as
agent for service of process as provided by any provision in
Section 202, 1502, 2105, or 2107 of the Corporations
Code”; or (2) “the president, chief executive
officer, or other head of the corporation, a vice president,
a secretary or assistant secretary, a treasurer or assistant
treasurer, a controller or chief financial officer, a general
manager, or a person authorized by the corporation to receive
service of process.” Cal. Civ. Proc. Code §
416.10. Redzone argues that the person to whom service was
delivered here, Mr. Hannan, is not one of the persons
identified in section 416.10 as able to accept service. Mot.
4. Netgear does not contest this assertion. Accordingly, the
Court deems this argument conceded.
relevant part, Maine Rule of Civil Procedure 4(d)(8) provides
that service may be effected upon a domestic private
by delivering a copy of the summons and of the complaint to
any officer, director or general agent; or, if no such
officer or agent be found, to any person in the actual
employment of the corporation; or, if no such person be
found, then pursuant to subdivision (g) of this Rule,
provided that the plaintiff's attorney shall also send a
copy of the summons and of the complaint to the corporation
by registered or certified mail, addressed to the
corporation's principal office as reported on its latest
annual return . . . .
Me. R. Civ. P. 4(d)(8) (emphasis added). Redzone contends
that Netgear's process server did not comply with Rule
4(d)(8) because the proof of service makes no mention of any
attempts to locate and serve any officer, director, or
general agent of Redzone before serving Mr. Hannan, an
employee. Reply ISO Mot. 2, ECF 24. Moreover, Redzone argues
that Netgear has submitted no declaration stating that anyone
made a search for or could not locate any such officer,
director, or general agent, before serving Mr. Hannan.
Id. Perhaps recognizing this, Netgear emphasizes
only that Maine law allows for service upon an employee.
See Opp'n 3-4. Netgear, however, ignores the
condition precedent found in Rule 4(d)(8): “if no such
officer or agent be found.” Having failed to satisfy
the condition precedent through declaration or affidavit, the
Court cannot agree that service complied with Maine law.
the Court does not agree with Netgear's contention that
the Court can “overlook” this technical defect in
service because Redzone received actual notice of the
lawsuit. Opp'n 4. In its papers, Netgear relies upon
Phillips v. Johnson, 834 A.2d 938 (Me. 2003), and
In re Richard E., 978 A.2d 217 (Me. 2009). Neither
case is persuasive, however, because in both of those cases,
the court had previously granted the plaintiffs' motions
for service by publication. Phillips, 834 A.2d at
945; In re Richard E., 978 A.2d at 221. Thus, the
court found that actual notice was sufficient despite the
plaintiff's failure to comply with service requirements
because the trial court had allowed for alternative service.
Actual notice was the inquiry because, under Maine Rule of
Civil Procedure 4(g)(1)(C), the method and manner of
alternative service must be “reasonably calculated to
provide actual notice.” Me. R. Civ. P. 4(g)(1)(C).
Here, the Court has not allowed Netgear to serve Redzone
through alternative means, and Netgear has not moved for such
relief. Thus, the inquiry is whether Netgear has complied
with the service requirements under Maine rules. It has not.
Accordingly, the Court will GRANT Redzone's motion to
quash service under Rule 12(b)(5).
Court will nevertheless allow Netgear the opportunity to cure
the service error by affording Plaintiff an extension of the
90-day service deadline set forth in Fed.R.Civ.P. 4(m).
Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir.
2007) (holding that courts have broad discretion to extend
the time for service under Rule 4(m)); see also Henderson
v. United States, 517 U.S. 654, 661 (1996) (the service
period contained in Rule 4(m) “operates not as an outer
limit subject to reduction, but as an irreducible
allowance”); Mann v. Am. Airline, 324 F.3d
1088, 1090 (9th Cir. 2003) (“Rule 4(m) explicitly
permits a district court to grant an extension of time to
serve the complaint[.]”). Netgear shall file a proof of
service with the Court on or before May 15, 2017. Failure to
file a valid proof of service shall result in issuance of an
order to show cause.
pending before the Court is Redzone's motion to dismiss
the complaint pursuant to Federal Rule of Civil Procedure
12(b)(2). ECF 9. Because the Court grants Redzone's
motion to quash service of the summons, the Court TERMINATES
Redzone's motion to dismiss WITHOUT PREJUDICE. Redzone
may re-notice the motion with the Court, if necessary, once
service has been properly effected. If ...