United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S REQUEST FOR SUBSTITUTED
AND ALTERNATIVE SERVICE OF PROCESS (ECF NOS. 24, 26)
December 26, 2017, Madhu Sameer (“Plaintiff”),
proceeding pro se, commenced this action by the
filing of a Complaint naming thirty defendants. (ECF No. 1).
On April 26, 2018, and April 30, 2018, Plaintiff filed
requests to effect substituted service of process upon eight
of the defendants: Sameer Khera, Snehal Devani, Healthy
Masala, Devine Arts & Entertainment, Sandra Schuster,
Gary Green, TC Zayner, and Edward Davila (collectively,
“defendants”). (ECF Nos. 24, 26).
contends that Sameer Khera has evaded service by failing to
respond to requests to waive service of process and by
refusing to provide his residential address. Plaintiff states
that Sameer Khera is no longer available at the residential
address identified through court records and skip tracing
because said residence has been sold. (ECF No. 24).
also contends that she could not secure the residential
address of Sandra Schuster, and said defendant has evaded
service at work. (ECF No. 24).
further contends that Gary Green, TC Zayner, and Edward
Davila are Judicial Officers who believe they are above the
law and are evading service. Specifically, Plaintiff states
that she has attempted to serve Gary Green more than five
times, including two times at his office and four times at
his residential address, but said defendant has refused
service. (ECF No. 26).
requests leave to serve the defendants by publication, by
leaving the documents at the defendant's office, by
email, or via Facebook. (ECF Nos. 24, 26).
federal court is without personal jurisdiction over a
defendant unless the defendant has been served in accordance
with Fed.R.Civ.P. 4.” Benny v. Pipes, 799 F.2d
489, 492 (9th Cir. 1986), amended, 807 F.2d 1514
(9th Cir. 1987), cert. denied, 484 U.S. 870 (1987).
Rule 4 provides that service of a summons and complaint may
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.” Fed.R.Civ.P. 4 (e)(1).
Code of Civil Procedure § 413.10 et seq., sets
forth the permissible methods of service of a summons and
complaint. Section 415.20(b) provides that service may be
made to the person to be served by leaving a copy of the
summons and complaint at his dwelling house, usual place of
abode, usual place of business, or usual mailing address
other than a United States Postal Service post office box
when such papers cannot be personally delivered with
reasonable diligence. The summons and complaint must be left
in the presence of a competent member of the household or a
person apparently in charge of such business, as the case may
be, who must be at least 18 years of age and be informed of
the general nature of the papers. A copy of the papers must
be mailed thereafter by ordinary first-class mail with
postage prepaid to the person to be served at the place of
delivery. Cal. Civ. Proc. Code § 415.20 (b).
415.50(a)(1) provides that “[a] summons may be served
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.” Because service by
publication is the least likely to succeed in notifying a
defendant of an action against him, a court must first be
convinced that a thorough, systematic investigation and
inquiry has been conducted in good faith to locate the
defendant to be served. Bd. of Trustees of the Leland
Stanford Junior Univ. v. Ham, 216 Cal.App.4th 330, 338
(2013). A plaintiff must demonstrate that exhaustive attempts
have been taken to serve the defendant by another
manner.” Watts v. Crawford, 10 Cal.4th 743,
749 n.5 (1995) (internal quotations and citations omitted).
In addition to the reasonable-diligence requirement, a
plaintiff requesting service by publication must show, by
affidavit 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.” Cal. Civ.
Proc. Code § 415.50(a)(1).
413.30 permits courts to direct service of a summons in any
manner that is reasonably calculated to give actual notice to
the party to be served, where no provision is made in this
chapter or other law for the service of summons. Pursuant to
this section, federal courts have authorized service by
email. See e.g. THC-Orange Cty. Inc. v. Valdez, No.
17-CV-01911-LB, 2017 WL 3115171, at *3 (N.D. Cal. July 21,
2017); Miller v. Ceres Uniified Sch. Dist., No.
1:15-CV-0029-BAM, 2016 WL 4702754, at *4 (E.D. Cal. Sept. 7,
2016); Carson v. Griffin, No. 13-cv-0520 KAW, 2013
WL 2403601 (N.D. Cal. May 31, 2014); Facebook, Inc. v.
Banana Ads, LLC, No. C-11-3619 YGR, 2012 WL 1038752
(N.D. Cal. Mar. 27, 2012). Nevertheless, to comport with due
process, this method of service must be “reasonably
calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford
them an opportunity to present their objections.”
Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d
1007, 1016 (9th Cir. 2002) (quoting Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).
requests leave to serve defendants by publication, email,
Facebook, or by leaving the documents at the office of the
person to be served. Initially, section 415.20(b) permits
Plaintiff to effect service upon a defendant by leaving a
copy of the summons and complaint at the person's usual
place of business and mailing an additional copy to the
address of said usual place of business. Thus, to the extent
Plaintiff seeks to effect service pursuant to section
415.20(b), she may do so without leave of the Court.
remainder of Plaintiff's motion is denied, however.
First, a request for service by publication must be
accompanied by an affidavit showing in detail (1) a thorough,
systematic investigation and inquiry conducted in good faith
to locate the defendant, including the dates thereof and any
attempts to serve the defendant by another method of service
and (2) that a cause of action exists against the defendant
or that he is a necessary or proper party. Judicial Council
Comment, Cal. Code Civ. Proc. § 415.50. Plaintiff's
request is not accompanied by the statutorily required
affidavit. Moreover, Plaintiff fails to show exhaustive
attempts to locate the defendants. Plaintiff does not detail
any investigation or inquiry conducted to locate the
defendants, and has in fact stated that at least one of the
defendants may be served by another method.
Plaintiff has not demonstrated that the requested alternative
methods of service are reasonably calculated to apprise the
defendants of this action. Plaintiff has submitted no
evidence that service by email or Facebook would provide
actual notice to the defendants. In fact, Plaintiff has not
informed this Court of any email addresses or Facebook
accounts through which she would attempt service of process.
Plaintiffs request to serve process by publication and by