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Lagree Technologies, Inc. v. Spartacus 20th L.P.

United States District Court, N.D. California

April 17, 2017

LAGREE TECHNOLOGIES, INC., et al., Plaintiffs,
v.
SPARTACUS 20TH L.P., et al., Defendants.

          ORDER GRANTING MOTION FOR ALTERNATE SERVICE RE: ECF NO. 24

          JON S. TIGAR, UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiffs' Motion for Alternate Service. ECF No. 24. The Court will grant the motion.[1]

         I. BACKGROUND

         Plaintiffs 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[2] and BodyRok Marina, L.P. ECF No. 24 at 4.

         Plaintiffs 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).[3]

         Plaintiffs 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. Id.

         II. LEGAL STANDARD

         Fed. R. 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)).

         To that 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.

         If 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).

         For 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 ...


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