United States District Court, E.D. California
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.
explained below, the court GRANTS plaintiff's motion.
Federal Rule of Civil Procedure 4(e), an individual may be
(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.
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
(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 .
. . .
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 ...