United States District Court, N.D. California
ORDER GRANTING MOTION TO QUASH RE: ECF NO.
TIGAR United States District Judge
the Court is Defendant Covenant Aviation Security, LLC's
(“Covenant”) motion to dismiss for insufficient
service of process or, in the alternative, to quash service
of process. ECF No. 65. The Court will grant the motion to
Sai filed this action on February 29, 2016. ECF No. 1. After
several extensions, Sai filed an amended complaint a year
later on February 9, 2017. ECF No. 57. At the Court's
direction, Sai submitted service addresses for the
non-individual Defendants, ECF No. 34, including Covenant.
Sai provided the following address for Covenant:
Covenant Aviation Security (CAS) James E. Mahoney, counsel
Griffith & Jacobson, LLC 55 W. Monroe St. Suite 3550
Chicago, IL 60603
Id. The Court then directed the U.S. Marshal to
serve these Defendants at the addresses Sai provided. ECF No.
April 5, 2017, a marshal served Sai's complaint on Daisy
Juarez, receptionist for Griffith & Jacobson, LLC at the
address Sai provided for Covenant. ECF No. 65-2 ¶ 7. Ms.
Juarez is not authorized to receive service of process on
Covenant's behalf. Id. ¶ 5. James Mahoney,
Covenant's General Counsel, also is not authorized to
receive service on Covenant's behalf. ECF No. 65-1 ¶
Federal Rule of Civil Procedure 12(b)(5), a defendant may
move to dismiss for “insufficient service of
process.” Alternatively, a defendant may move to quash
the summons. E.g., Verde Media Corp. v. Levi, No.
14-CV-00891 YGR, 2014 WL 3372081, at *2 (N.D. Cal. July 9,
2014). “The choice between dismissal and quashing
service of process is in the district court's
discretion.” Stevens v. Sec. Pac. Nat. Bank,
538 F.2d 1387, 1389 (9th Cir. 1976). Generally, service
“will be quashed and the action preserved in those
situations in which there is a reasonable prospect that the
plaintiff ultimately will be able to serve the defendant
properly.” Wright & Miller, 5B Fed. Prac.
& Proc. Civ. § 1354 (3d ed.).
argues that process was insufficient here because neither
Daisy Juarez nor James Mahoney was authorized to accept
service on Covenant's behalf. The Court agrees.
Plaintiff points out, “[d]espite the language of
[Federal Rule of Civil Procedure 4], service of process is
not limited solely to officially designated officers,
managing agents, or agents appointed by law for the receipt
of process.” Direct Mail Specialists, Inc. v. Eclat
Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.
1988). Rather, “service can be made ‘upon a
representative so integrated with the organization that he
will know what to do with the papers. Generally, service is
sufficient when made upon an individual who stands in such a
position as to render it fair, reasonable and just to imply
the authority on his part to receive service.'”
Id. (quoting Top Form Mills, Inc. v. Sociedad
Nationale Industria Applicazioni Viscosa, 428 F.Supp.
1237, 1251 (S.D.N.Y. 1977)). Plaintiff argues that Ms. Juarez
and Mr. Mahoney satisfy the Direct Mail test.
“[t]he attorney-client relationship by itself does not
convey authority to accept service.” Evony, LLC v.
Aeria Games & Entm't, Inc., No. C 11-0141 SBA,
2012 WL 12843210, at *8 (N.D. Cal. Sept. 28, 2012) (citing
United States v. Ziegler Bolt & Parts Co., 111
F.3d 878, 881 (Fed. Cir. 1997); see also Pochiro v.
Prudential Ins. Co. of America, 827 F.2d 1246, 1249 (9th
Cir. 1987) (service of process on an attorney is ineffective
unless the attorney is authorized to accept service).
“Even where an attorney exercises broad powers to
represent a client in litigation, these powers of
representation alone do not create a specific authority to
receive service.” Evony, LLC, 2012 WL
12843210, at *8. “Instead, the record must show that
the attorney exercised authority beyond the attorney-client
relationship, including the power to accept service.”
Id. Here, despite his position as general counsel,
Mr. Mahoney has stated that he was not authorized to accept
service for Covenant. ECF ...