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Estate of Smith v. City of San Diego

United States District Court, S.D. California

May 4, 2017

Estate of TIMOTHY GENE SMITH, deceased, by his successor in interest JANIE RICHELLE SANDERS; JANIE RICHELLE SANDERS, as an individual; SANDY LYNN SIMMONS; and WYATT ALLEN GUNNER SMITH, Plaintiffs,
v.
CITY OF SAN DIEGO; SHELLEY ZIMMERMAN AND SCOTT HOLSLAG, as individuals and employees of City of San Diego; NATALIE ANN MACEY, as an individual doing business as Macey Bail Bonds; LEGAL SERVICE BUREAU, Inc., a California domestic corporation doing business as Global Fugitive Recovery; DAN ESCAMILLA, as an individual and on behalf of Legal Service Bureau, Inc.; LELAND CHAPMAN BAIL BOND CO. INC., a Colorado corporation; LBC, Inc., a Hawaii corporation; KAMA AINA BAIL BONDS, INC., a Hawaii corporation; LELAND B. CHAPMAN, as an individual and on behalf of Leland Chapman Bail Bond Co. Inc., LBC, Inc., and Kama Aina Bail Bonds, Inc., Defendants.

          ORDER

          WILLIAM Q. HAYES, United States District Judge

         The matter before the Court is the Ex Parte Motion for Alternative Service of Summons filed by Plaintiffs Estate of Timothy Gene Smith, by his successor in interest Janie Richelle Sanders; Janie Richelle Sanders; Sandy Lynn Simmons; and Wyatt Allen Gunner Smith (“Plaintiffs”). (ECF No. 31).

         I. Background

         On December 8, 2016, Plaintiffs initiated this action by filing a complaint. (ECF No. 1). On December 29, 2016, Plaintiffs filed the First Amended Complaint, which is the operative complaint in this matter. (ECF No. 7). The First Amended Complaint asserts four causes of action against Defendants LBC Inc., Kama Aina Bail Bonds, Inc., and Leland B. Chapman: conspiracy to violate civil rights; intentional infliction of emotional distress; defamation; and false light. Id. at 20-26. On March 10, 2017, the Court granted Plaintiffs' ex parte motion to extend time to serve the complaint, and ordered that “Plaintiffs shall have 60 days from the date of this order to serve and file proof of service of summons of the complaint on the remaining defendants to be served.” (ECF No. 27 at 2).

         On April 4, 2017, Plaintiffs filed the Ex Parte Motion for Alternative Service of Summons. (ECF No. 31).

         II. Contentions of the Plaintiffs

         Plaintiffs contend that good cause exists for this Court to issue an order permitting Plaintiffs to complete alternative service of Defendants LBC Inc., Kama Aina Bail Bonds, Inc., and Leland B. Chapman by methods permitted by the Hawaii Rules of Civil Procedure and by Hawaii state law. Plaintiffs request that the Court issue an order permitting service by certified mail, return receipt requested and for an order permitting service by publication. Plaintiffs contend they have acted diligently in attempting to personally serve Defendants LBC Inc., Kama Aina Bail Bonds, Inc. and Leland B. Chapman, including “fourteen attempts . . . to personally effectuate service on Leland Chapman and his entities in Hawaii at three different addresses, to no avail” and attempts to communicate with Defendants by phone and text message. (ECF No. 31-1 at 8-9). Plaintiffs contend that they have demonstrated good cause by including a “chronology of service attempts” and a “Non-Service Report from plaintiffs' process server confirming each of these attempts” in their Ex Parte Motion for Alternative Service of Summons. (ECF Nos. 31-1 at 4-6; 31-7 at 1-2).

         III. Applicable Law

         Federal Rule of Civil Procedure 4(e) states that an individual “may be served in a 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.” Fed.R.Civ.P. 4(e)(1).

Hawaii Rule of Civil Procedure 4(e) states,
Whenever a statute or an order of court requires or permits service by publication of a summons, or of a notice, or of an order in lieu of summons, any publication pursuant thereto shall be made under the circumstances and in the manner prescribed by the statute or order.

         Haw. R. Civ. P. 4(e). Haw. Rev. Stat. § 634-35(b) states that,

Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this section, may be made as provided by section 634-36, if the person cannot be found in the State, with the same force and effect as ...

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