United States District Court, N.D. California
ORDER GRANTING MOTION FOR ALTERNATE SERVICE RE: ECF
TIGAR, UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs' Motion for Alternate Service.
ECF No. 24. The Court will grant the motion.
Lagree Technologies, Inc., Lagree Fitness Inc., and Maximum
Fitness Incorporated filed patent infringement claims against
Spartacus 20th L.P., Spartacus 20th G.P., Inc., Philip R.
Palumbo (“Palumbo”), Jakob Irion, BodyROK
Franchise, Limited Partnership, BodyROK Franchise GP, Inc.,
Exercise Technologies, L.P., BodyRok Marina, L.P.
(“BodyRok Marina”), and Sculpt Fitness Berkeley,
LLC on February 17, 2017. ECF No. 1 at 2. Plaintiffs
effectuated service on all Defendants except
Palumbo and BodyRok Marina, L.P. ECF No. 24 at 4.
attempted to serve Palumbo and BodyRok Marina “using
two addresses found in the numerous corporate filings of
BodyRok Marina and Spartacus entities in the states of
California, Missouri and Nevada.” Id. at 4;
see also ECF No. 23-8 at 3, 4-5. The addresses,
however, were invalid. ECF No. 24 at 4. Plaintiffs allege
that their process server made five attempts at personal
service at these two addresses. Id.
On March 2, 2017, Plaintiffs hired a private investigator who
was able to find another residential address owned by
Palumbo, a gated home with an intercom. Service was attempted
six times on this address without success. One of those
times, a person was inside the house but spoke to the process
server through an intercom and refused to answer the door.
Id. (internal citations omitted).
also asked Defendants' counsel for assistance in
contacting Palumbo and BodyRok Marina, to no avail.
Id. On March 13, 2017, defense counsel agreed to
accept service for the remaining Defendants “in
exchange for a 45-day extension of the deadline to respond to
the complaint.” Id. Plaintiffs did not agree
to the extension and subsequently filed the present motion.
Civ. Pro. 4(e)(1) provides that an individual within a
judicial district of the United States may be served 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.” A corporation may also be served pursuant to
state law. Id. at (h)(1)(A). “The goal of Rule
4 is to provide maximum freedom and flexibility in the
procedures for giving all defendants . . . notice of
commencement of the action and to eliminate unnecessary
technicality in connection with the service of
process.” Kohler Co. v. Domainjet, Inc., 2012
WL 716883, at *1 (S.D.Cal.) (quoting Elec. Specialty Co.
v. Road & Ranch Supply, Inc., 967 F.2d 309, 314 (9th
Cir.1992)) (internal quotation marks omitted). “Due
Process requires that any service of notice be
‘reasonably calculated, under all circumstances, to
apprise interested parties of the pendency of the action and
afford them an opportunity to present their
objections.'” Aevoe Corp. v. Pace, 2011 WL
3904133, at *1 (N.D.Cal.) (quoting Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314, 70
S.Ct. 652, 94 L.Ed. 865 (1950)).
end, Section 413.30 of the California Code of Civil Procedure
states (emphasis added):
Where no provision is made in this chapter or other law for
the service of summons, the court in which the action is
pending may direct that summons be served in a manner
which is reasonably calculated to give actual notice to the
party to be served and that proof of such service be
made as prescribed by the court.
personal service is not possible after reasonable due
diligence, then service may be effectuated by leaving the
summons at a place of business, dwelling, abode, or usual
mailing address with a person over 18 years of age. Cal. Civ.
Pro. Code 415.20(b). Courts may permit such substitute means
of service, so long as they comport with “traditional
notions of fair play and substantial justice implicit in due
process.” Bein v. Brechtel-Jochim Grp., Inc.,
6 Cal.App.4th 1387, 1392 (1992).
substituted service to be reasonably calculated to give an
interested party notice of the pendency of the action and an
opportunity to be heard, “[s]ervice must be made upon a
person whose relationship to the person to be served makes it