United States District Court, S.D. California
ORDER GRANTING MOTION TO QUASH SERVICE OF SUMMONS AND
COMPLAINT [DOC. NO. 10]
Cathy Ann Bencivengo, United States District Judge
the Court is Defendant's motion to quash service of
summons and complaint. [Doc. No. 10.] The motion has been
fully briefed and the Court deems it suitable for
determination on the papers submitted and without oral
argument. See S.D. Cal. CivLR 7.1(d)(1). For the
reasons set forth below, the motion is granted.
Anton Ewing filed a complaint against Defendant Mark Pollard
on May 7, 2019, alleging violations of the Telephone Consumer
Protection Act, 47 U.S.C. § 227 (“TCPA”).
[Doc. No. 1.] On June 18, 2019, Plaintiff filed an ex
parte request to serve Defendant by publication [Doc.
No. 5], which this Court denied on June 21, 2019. [Doc. No.
6.] On June 25, 2019, Plaintiff filed an executed service of
summons. [Doc. No. 7.] In the proof of service, the process
server declared that on a third attempt she completed
“substituted service on a person of suitable age and
discretion residing therein at Defendant Pollard's
principle place of abode.” [Id. at
The process server declared that when she first arrived at
the residence, she saw two teenagers who appeared to be 18 or
19 years old playing basketball on the driveway.
[Id.] According to the process server, when the two
teenagers started running towards the garage, she got out of
her car, ran down the driveway, and threw the documents at
the garage door while yelling that she had seen them and they
were served. [Id.] Thereafter, the process server
mailed the summons and complaint to Defendant's address
through FedEx, UPS, and USPS, and also emailed a copy to
Defendant. [Id. at 4-5.] On August 5, 2019,
Defendant moved to quash service of summons and complaint.
[Doc. No. 10.]
Rule of Civil Procedure 12(b)(5) “allows the defendant
to attack the manner in which service was, or was not,
attempted.” Ponomarenko v. Shapiro, No.
16-cv-02763-BLF, 2017 WL 1709335, at *2 (N.D. Cal. May 3,
2017). “When the validity of service is contested, the
burden is on the plaintiff to prove that service was valid
under Rule 4.” Id. (citing Brockmeyer v.
May, 383 F.3d 798, 801 (9th Cir. 2004)). “If the
plaintiff is unable to satisfy this burden, the Court has the
discretion to either dismiss the action or retain the action
and quash the service of process.” Id. (citing
Lowenthal v. Quicklegal, Inc., No. 16-cv-3237, 2016
WL 5462499, at *5 (N.D. Cal. Sept. 28, 2016)).
Rule of Civil Procedure 4 provides that “[u]nless
federal law provides otherwise, an individual . . . may be
served by . . . leaving a copy of [the summons and complaint]
at the individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides
there.” Fed.R.Civ.P. 4(e)(2)(B).
asserts he effectuated substituted service upon Defendant
pursuant to Federal Rule of Civil Procedure 4(e)(2)(B). While
Plaintiff indicated in his ex parte request to serve
by publication that personal service attempts were previously
unsuccessful in May, the executed service that was filed with
the Court is devoid of any facts regarding the process
server's due diligence to attempt personal service in
June. Instead, the process server's declaration begins,
“I complete [sic] a third attempt and actual service on
Mark Pollard.” [Doc. No. 7 at 4.] The declaration then
goes on to state the process server saw two teenagers playing
basketball on the driveway who appeared 18 or 19, and the
process server ran after them and threw the documents at the
garage door as they were closing it, yelling out that she saw
them and they were served. [Id.]
process server appears to have made no attempts to ascertain
the age of the two teenagers she saw on the driveway, whether
they reside at Defendant's address, or their relationship
to the Defendant. Defendant asserts that he was inside his
home and his 16-year-old son was playing basketball with a
friend who is also 16, and there was no knock or ring of the
doorbell. Without any attempt at speaking with the teenagers,
the process server cannot plausibly declare they were
“of suitable age and discretion residing
therein.” While the process server states that they ran
inside when they saw her, with knowledge of the two
individuals present at Defendant's address, the process
server could have gone to the door to inquire as to the above
information or whether the Defendant was available. Resorting
to throwing the documents at two unidentified teenagers while
the garage door is closing is not sufficient for substitute
Defendant's motion to quash is GRANTED.
However, the Court will afford Plaintiff another opportunity
to serve Defendant correctly.
foregoing reasons, the Court GRANTS
Defendant's motion to quash. Plaintiff shall effect
service of process on Defendant on or before
September 23, 2019. The Clerk of
Court is ...