United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S APPLICATION TO SERVE
DEFENDANT NOVE PLAZA, LLC BY SERVING THE CALIFORNIA SECRETARY
OF STATE WITHOUT PREJUDICE (ECF NO. 15)
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.)
16, 2018, Plaintiff filed a request to serve Defendant Nove
Plaza by serving the California Secretary of State. (ECF No.
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).
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 §
“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).
415.10 of the California Code of Civil Procedure provides for
service of a summons by personal delivery to the person to be
[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).
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.