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United States v. Jerkovich

United States District Court, E.D. California

November 8, 2017

UNITED STATES OF AMERICA, Petitioner,
v.
MICHAEL A. JERKOVICH, dba SUPER SUDS LAUNDRY, Respondent.

          ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION TO PERMIT ALTERNATE PROCESS SERVICE (DOC. 7)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Before the Court is a Notice and Motion to Permit Alternate Process Service filed by Petitioner United States of America (the “Government”), requesting the Court's permission to serve process upon Respondent Michael A. Jerkovich, dba Super Suds Laundry (“Respondent”) by means other than those allowed by Fed.R.Civ.P. 4(e). (Doc. 7.) For the reasons set forth below, Respondent's Motion is GRANTED.

         BACKGROUND

         On December 6, 2016, the Internal Revenue Service (“IRS”) issued a summons to Respondent directing him to appear before a Revenue Officer on December 20, 2016. (Doc. 1, ¶¶ 6-7.) Respondent did not comply with the summons and failed to appear on December 20, 2016, or otherwise respond to the summons by phone or in writing. (Doc. 1, ¶ 8.) On August 24, 2017, the Government filed a petition seeking a court order directing Respondent to show cause why he should not be compelled to comply with and obey the summons. (Doc. 1.)

         On August 29, 2017, pursuant to the Government's request, the Court ordered Respondent to appear on October 18, 2017, and show cause why he should not be compelled to obey the IRS summons issued on December 6, 2017. (Doc. 4.) The Court required that the Order to Show Cause (“OSC”), along with other relevant documents, be served on Respondent pursuant Federal Rule of Civil Procedure 4 (“Rule 4”). (Doc. 4, ¶ 3.) The Government was unable to serve the OSC and other documents on Respondent pursuant to Rule 4 and requested a continuance of the OSC hearing to accomplish service of the Court's Order. (Docs. 5, 6.)

         On November 3, 2017, Petitioner filed the instant Motion to Permit Alternate Process Service because all attempts at service upon Respondent at his residence pursuant to Rule 4 were unsuccessful. (Doc. 7.)

         DISCUSSION

         The Government moves the Court to permit alternate process service through the October 26, 2017, posting to the door of Respondent's residence, and the October 27, 2017, mailing to Respondent's residence via both U.S. Mail and Certified Mail Return Receipt Requested. (Doc. 7, 5:2-5.) Petitioner also moves the Court to deem the service completed based on the posting and mailing. (Doc. 7.) Respondent did not file an opposition to this Motion.

         A. Legal Standard

         Under Federal Rule of Civil Procedure 4(e)(1), service upon an individual may be effected in any judicial district of the United States:

(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

         Fed. R. Civ. P. 4(e). 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 service of process.” Elec. Specialty Co. v. Rd. & Ranch Supply, Inc., 967 F.2d 309, 314 (9th Cir. 1992) (citation omitted). Due Process requires that any service of notice be ‚Äúreasonably calculated, under all circumstances, to apprise interested parties of the pendency of the ...


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