New York Life Insurance Co. v. Dial

          ORDER

         On May 6, 2019, New York Life Insurance Company filed a complaint in interpleader to determine the rightful beneficiary of the life insurance policy proceeds of Eugene Lawlor, who passed away May 17, 2018. Compl., ECF No. 1. Lawlor, a former priest based in Sacramento, California, initially designated defendant Mike Dial, a parishioner, as his sole beneficiary. Compl., Ex. A at 8; Mot., ECF No. 10-1, at 3. Later, however, Lawlor appeared to express a desire to change the beneficiary to St. Mary's Cemetery in Sacramento or to Eddy G. Buvert, an officer of St. Mary's Cemetery. Mot. at 3. New York Life Insurance served St. Mary's Cemetery and Eddy G. Buvert in this action. Id., Exs. B, C. After unsuccessful attempts to locate Dial, New York Life Insurance now requests an order permitting service of the summons and complaint by publication as to defendant Dial. Neither of the remaining defendants oppose. See Statement of Non-Opp'n, ECF No. 13. On November 6, 2019, the court heard oral argument and ordered the parties to file supplemental briefing regarding the appropriate vehicle, and further ordered attorney Michele Rannie, who conducted the search for Dial, to file a supplemental declaration. ECF No. 20. New York Life and Rannie filed the requested briefing and declaration, respectively. ECF Nos. 21, 22.

         As explained below, the court GRANTS plaintiff's motion.

         I. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 4(e), an individual may be served by:

(1) following state law for serving a summons . . .; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

         Under Rule 4(e)(1), the court looks to California law to determine the permissibility of service by publication. See Thieme v. Cobb, No. C 13-3827 MEJ, 2013 WL 5955749, at *2 (N.D. Cal. Oct. 30, 2013). In California, service by publication is permitted as a matter of last resort. Cal. Civ. Proc. Code § 415.50. Specifically, the California Code of Civil Procedure provides:

(a) 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 . . . .

         Cal. Civ. Proc. Code § 415.50(a). Section 415.50(a) also requires that either:

(1) 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 [or]

(2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in ...