United States District Court, E.D. California
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S APPLICATION TO EXTEND TIME TO SERVE DEFENDANT
MARCIA DOERR AND TO SERVE BY PUBLICATION (DOC. 7)
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
the Court is an ex parte application (the
“Application”) filed by Plaintiff United States
of America (“Plaintiff”) for an order extending
the time to serve process on Defendant Marcia Doerr
(“Defendant Doerr”) and permitting such service
by publication. (Doc. 7.) For the reasons set forth below,
Defendant's Application is GRANTED in part and DENIED in
August 16, 2017, Plaintiff filed this action seeking to
reduce federal income tax assessments incurred by Defendant
David J. Edwards (“Defendant Edwards”) to a
judgment, pursuant to 26 U.S.C. §§ 7401 and 7403,
and foreclose federal tax liens on real property owned by
Defendant Edwards in Fresno County. (Doc. 1 (the
“Complaint”).) Plaintiff has served Defendant
Edwards (Doc. 4) and Defendant Central Cinema (Doc. 5), and
Defendant State of California Franchise Tax Board waived
service (Doc. 6). Plaintiff has been unsuccessful, however,
in its attempts to serve Defendant Doerr.
to the Application, Defendant Doerr is the current trustee
for LAP Trust, a trust which Defendant Edwards allegedly used
to conceal assets from the IRS. (Doc. 7-1, 2:3-5, 2:16-19.)
Plaintiff attempted to locate a physical address for
Defendant Doerr by searching official records of the IRS,
public record databases on Westlaw and Lexis, Accurint for
Law Enforcement, Thomson Reuters CLEAR database, and
TransUnion's TLOxp for Law Enforcement. (Doc. 7-1,
3:4-11.) As a result, Plaintiff found two physical addresses
purportedly belonging to Defendant Doerr, and, through a
professional process server, Plaintiff attempted service at
those addresses. (Doc. 7-1, 11-14.) Plaintiff's process
server attempted service on September 29, 2017, October 3,
2017, and October 10, 2017, and each time the occupant told
the process server that Defendant Doerr was unknown to them.
(Doc. 7-1, 3:15-4:2.)
on November 1, 2017, concurrently with the filing of the
present Application, Plaintiff attempted to contact Defendant
Doerr by mail at her last known address-a post office box in
Oakland. (Doc. 7-1, 4:13-5:7.) Although the time limit within
which Defendant Doerr must acknowledge receipt of
Plaintiff's service by mail has not expired, Plaintiff
believes Defendant Doerr is unlikely to respond.
now submits this Application for an order extending the time
to serve process on Defendant Doerr and permitting Plaintiff
to serve Defendant Doerr by publication. (Doc. 7.)
Federal Rule of Civil Procedure 4(e)(1), a proper service of
summons can be made 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.” Accordingly,
California's statute on service by publication governs
whether substituted service is proper in this case.
California Code of Civil Procedure § 415.50(a)(1) allows
service by publication “if upon affidavit it appears to
the satisfaction of the court in which the action is pending
that the party to be served cannot with reasonable diligence
be served in another manner specified in this article and
that . . . [a] cause of action exists against the party upon
whom service is to be made or he or she is a necessary or
proper party to the action.”
the purposes of service by publication, the existence of a
cause of action is a jurisdictional fact.”
Sananikone v. U.S., 2:07-cv-01434-MCE-EFB, 2009 WL
796544, at *2 (E.D. Cal. Feb. 25, 2009) (quoting Harris
v. Cavasso, 68 Cal.App.3d 723, 726 (3d Dist. 1977)).
Additionally, a party seeking leave to serve process by
publication must establish that “reasonable
diligence” has been exercised to serve process in
another manner permitted by California law. Id.
(quoting Watts v. Crawford, 10 Cal.4th 743, 749 n.5
(1995)). “The term ‘reasonable diligence' . .
. denotes a thorough, systematic investigation and inquiry
conducted in good faith by the party or his agent or
attorney.'” Id. Before permitting service
by publication, the Court necessarily requires that the
plaintiff “show exhaustive attempts to locate the
defendant, ” because “service by publication
rarely results in actual notice.” Id.
Accordingly, a plaintiff that fails to take exhaustive
measures to locate a party to be served cannot establish
reasonable diligence. Id.
Plaintiff Has Established the Existence of a ...