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Lucero v. Ira Services, Inc.

United States District Court, N.D. California, San Francisco Division

June 27, 2019

LUIS HURTADO LUCERO, Plaintiff,
v.
IRA SERVICES, INC., et al., Defendants.

          ORDER DIRECTING SERVICE ON DEFENDANT Re: ECF No. 65

          Laurel Beeler United States Magistrate Judge.

         INTRODUCTION

         Plaintiff Luis Hurtado Lucero claims that the defendants defrauded him by inducing him to place his retirement savings in an investment program that turned out to be an illegal Ponzi scheme.[1] One defendant is William Benson Peavey, Jr., who allegedly told Mr. Lucero that he was an attorney knowledgeable about tax-free retirement planning and convinced Mr. Lucero to invest in this program.[2]

         Mr. Lucero made repeated attempts to serve a summons and complaint on Mr. Peavey.[3] His efforts included hiring a process server and a private investigator to locate Mr. Peavey, trying to serve him at five separate addresses, contacting him by mail, calling him, and emailing him at the email address that Mr. Peavey used to conduct all transactions related to Mr. Lucero's investment.[4] Mr. Lucero seeks to serve the summons and complaint on Mr. Peavey by email.[5]

         The court can decide Mr. Lucero's application without oral argument. N.D. Cal. Civ. L.R. 7-1(b). The court authorizes Mr. Lucero to serve the summons, the complaint, and this order on Mr. Peavey by email. The court also directs Mr. Lucero to (1) publish the summons in the San Francisco Chronicle and (2) mail a copy of the summons, the complaint, and this order to Mr. Peavey's P.O. box and the addresses that Mr. Lucero found that were linked to Mr. Peavey, excluding the empty lot in San Bruno.

         STATEMENT

         Mr. Lucero determined that the last known address for Mr. Peavey was a P.O. box address in South San Francisco.[6] He mailed Mr. Peavey at that address on October 1, 2018, but Mr. Peavey did not respond.[7]

         Mr. Lucero then obtained the following five additional addresses for Mr. Peavey: (1) an address where Mr. Lucero last interacted with Mr. Peavey; (2) an address identified in public records (an empty lot in San Bruno); (3) two addresses resulting from skip-trace searches of Mr. Peavey and his wife, performed by One Legal, a process server; and (4) the physical address linked to Mr. Peavey's P.O. box, obtained by a private investigator from a postmaster.[8] Mr. Lucero hired a process server to serve Mr. Peavey at those addresses.[9] The process server made multiple attempts but was unable to serve Mr. Peavey.[10] Mr. Peavey's son resided at one location but said that he had no contact with his father and did not know where he resided.[11]

         Mr. Lucero filed an ex parte application to serve Mr. Peavey by publication in the San Francisco Chronicle.[12] The court asked Mr. Lucero whether he had any other contact information for Mr. Peavey.[13] Mr. Lucero responded with a phone number and an email address that he used to use to communicate with Mr. Peavey.[14] The court denied without prejudice Mr. Lucero's application to serve Mr. Peavey by publication and suggested that Mr. Lucero had not demonstrated sufficiently that he could not serve Mr. Peavey in another manner, such as by email.[15]

         Mr. Lucero then submitted a declaration containing more information about his efforts to serve Mr. Peavey.[16] Mr. Lucero's counsel attempted to call Mr. Peavey at his last known phone number multiple times to discuss service and left voicemail messages.[17] Mr. Peavey did not return the calls.[18] Mr. Lucero's counsel also sent an email to peaveybill@gmail.com, the email address Mr. Peavey used to conduct all transactions related to Mr. Lucero's investment.[19] Mr. Peavey did not respond, but Mr. Lucero's counsel's email did not “bounce-back, ” indicating that the email address is still active.[20]

         Mr. Lucero now moves for an order authorizing him to serve the summons and complaint on Mr. Peavey by email.[21]

         ANALYSIS

         1. Governing Law

         Under Federal Rule of Civil Procedure 4(e), a plaintiff may serve an individual in the United States using any method permitted by the law of the state in which the district court is located or in which service is affected. Fed.R.Civ.P. 4(e)(1). California law allows for five basic methods of service: (1) personal delivery to the party, see Cal. Civ. Proc. Code § 415.10; (2) delivery to someone else at the party's usual residence or place of business with mailing after (known as “substitute service”), see Id. § 415.20; (3) service by mail with acknowledgment of receipt, see Id. ยง 415.30; (4) service ...


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