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Hopson v. Nove Plaza, LLC

United States District Court, E.D. California

May 22, 2018

CYNTHIA HOPSON, Plaintiff,
v.
NOVE PLAZA, LLC, et al., Defendants.

          ORDER DENYING PLAINTIFF'S APPLICATION TO SERVE DEFENDANT NOVE PLAZA, LLC BY SERVING THE CALIFORNIA SECRETARY OF STATE WITHOUT PREJUDICE (ECF NO. 15)

         I. BACKGROUND

         This action was filed on December 26, 2017. (ECF No. 1.) On December 26, 2017, a summons issued as to Defendant Nove Plaza, LLC (“Defendant Nove Plaza”) and other defendants. (ECF No. 2.) On April 19, 2018, this action was reassigned to the undersigned due to the retirement of Magistrate Judge Michael J. Seng. (ECF No. 7.) On April 20, 2018, the Court ordered Plaintiff to show cause why this action should not be dismissed for failure to serve in compliance with Rule 4(m) and failure to prosecute. (ECF No. 8.) On April 25, 2018, Plaintiff filed a response to the order to show cause and requested thirty days to complete service. (ECF No. 10.) On April 27, 2018, the Court discharged the order to show cause and ordered Plaintiff to effect service of process on Defendant Nove Plaza on or before June 1, 2018. (ECF No. 12.)

         On May 16, 2018, Plaintiff filed a request to serve Defendant Nove Plaza by serving the California Secretary of State. (ECF No. 15.)

         II. LEGAL STANDARD

         Rule 4 of the Federal Rules of Civil Procedure provides that proper service of a limited liability corporation (“LLC”) can be made “in the manner prescribed by Rule 4(e)(1) for serving an individual.” Fed.R.Civ.P. 4(h)(1)(A). Rule 4(e)(1) provides that service 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).

         Section 17701.16(b) of the California Corporations Code provides that a foreign LLC may be served by “[p]ersonal service of a copy of any process against . . . the foreign limited liability company by delivery (1) to any individual designated by it as agent . . .” Cal. Corp. Code § 17701.16(b). However,

“if the designated agent cannot with reasonable diligence be found at the address designated for personal delivery of the process, and it is shown by affidavit to the satisfaction of the court that process against . . . a foreign limited liability company cannot be served with reasonable diligence upon the designated agent by hand in the manner provided in Section 415.10, subdivision (a) of Section 415.20, or subdivision (a) of Section 415.30 of the Code of Civil Procedure, the court may make an order that the service shall be made . . . upon a registered foreign limited liability company by delivering by hand to the Secretary of State, or to any person employed in the Secretary of State's office in the capacity of assistant or deputy, one copy of the process for each defendant to be served, together with a copy of the order authorizing the service. Service in this manner shall be deemed complete on the 10th day after delivery of the process to the Secretary of State.

Cal. Corp. Code § 17701.16(c).

         Section 415.10 of the California Code of Civil Procedure provides for service of a summons by personal delivery to the person to be served.

         Section 415.20(a) provides:

[i]n lieu of personal delivery of the summons to the person to be served[, ] . . . a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office, or if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents therof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

Cal. Civ. Proc. Code § 415.20(a).

         The third method of service referenced in Section 17701.16(c) of the California Code of Corporations is Section 415.30(a) of the California Code of Civil Procedure, which provides for service by mail.

         III. ...


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