Akkawi v. Sadr

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DIANA AKKAWI, et al., No. 2:20-cv-01034-MCE-AC 12 Plaintiffs, 13 v. MEMORANDUM AND ORDER 14 KASRA SADR, et al., 15 Defendants. 16 17 Through this action, Plaintiffs Diana Akkawi, Yasmin Akkawi, Katelyn J. Button, 18 Eric Stell, Steve W. Fox, and Edmond Tarverdian (collectively, “Plaintiffs”) seek to 19 recover damages and obtain injunctive relief against Defendants Kasra Sadr (“Sadr”), 20 the Car Law Firm (“CLF”), the Sadr Law Firm (“SLF”), and Nationwide VIN Marketing 21 (“Nationwide”) (collectively, “Sadr Defendants”), as well as Defendant Ryan Bancaya 22 (“Bancaya”). Plaintiffs allege, inter alia, that all Defendants conspired to acquire 23 Plaintiffs’ personal and private records from the California Department of Motor Vehicles 24 (“DMV”) in order to solicit representation for litigation.1 See First Am. Compl., ECF 25 No. 101, at 2 (“FAC”). 26 /// 27 1 The DMV was a previous Defendant to this action before it was voluntarily dismissed by all 28 Plaintiffs. See ECF Nos. 9–10. 1 Presently before the Court are the following motions: (1) Sadr Defendants’ 2 Motion for Summary Judgment, ECF No. 137; (2) Plaintiffs’ second Administrative 3 Motion for an Order Vacating the Current Discovery Cut-off, ECF No. 140; and (3) 4 Plaintiffs’ Motions for Alternative Service of Non-Party Witnesses Nima Heydari 5 (“Heydari”) and Narissa Nelson (“Nelson”), ECF Nos. 171–72. Additionally, on July 14, 6 2023, this Court ordered Plaintiffs “to show cause in writing as to whether Defendant 7 Ryan Bancaya was properly served in accordance with Federal Rule of Civil Procedure 8 4(f) and the Hague Convention” (“OSC”). ECF No. 183. Plaintiffs timely filed a response 9 to the OSC on July 24, 2023, and Defendants filed objections thereto on July 28, 2023. 10 ECF Nos. 184–85. 11 For the following reasons, Sadr Defendants’ Motion for Summary Judgment is 12 DENIED without prejudice, Plaintiffs’ Motions for Alternative Service are each GRANTED 13 in part and DENIED in part, Plaintiffs’ Administrative Motion for an Order Vacating the 14 Current Discovery Cut-off is GRANTED in part and DENIED in part, and the OSC is 15 DISCHARGED.2 16 17 BACKGROUND 18 19 A. Procedural History 20 On May 20, 2020, Plaintiffs filed their initial Complaint in this Court, alleging the 21 following causes of action against Sadr Defendants: (1) Violations of the Driver’s 22 Privacy Protection Act (18 U.S.C. §§ 2721 et seq.); (2) Violations of California Vehicle 23 Code §§ 1808 et seq.; (3) Conversion; (4) Trespass to Personal Property; (5) Intrusion 24 into Private Affairs; (6) Negligence; (7) Civil Conspiracy; (8) Unjust Enrichment; 25 (9) Violations of California’s False Advertising Law (California Business and Professions 26 Code §§ 17500 et seq.); (10) Violations of California’s Unfair Competition Law (id. §§ 27 2 Because oral argument would not have been of material assistance, the Court ordered these 28 matters submitted on the briefs. E.D. Local Rule 230(g). 1 17200 et seq.); (11) Violation of the Federal Right to Privacy; and (12) Declaratory 2 Relief. ECF No. 1. About a month later, on June 22, 2020, Plaintiffs filed a Motion for a 3 Temporary Restraining Order and Motion for Preliminary Injunction, which this Court 4 denied. ECF Nos. 12, 28. 5 On July 7, 2020, Sadr Defendants filed Motions to Dismiss the Complaint 6 pursuant to Federal Rule of Civil Procedure 12(b)(6)3 and the Anti-SLAPP (Strategic 7 Lawsuit Against Public Participation) provisions of California Code of Civil Procedure 8 § 425.16(b). See ECF Nos. 21–22. The Court denied both Motions in their entirety on 9 September 1, 2021. ECF No. 30. Sadr Defendants subsequently filed their Answer on 10 October 1, 2021. ECF No. 32. The deadline to complete non-expert discovery was 11 October 1, 2022. See ECF No. 5, at 2 (“All discovery, with the exception of expert 12 discovery, shall be completed no later than three hundred sixty-five (365) days from the 13 date upon which the last answer may be filed with the Court pursuant to the Federal 14 Rules of Civil Procedure.”). 15 Plaintiffs obtained information relating to Bancaya through Sadr’s deposition on 16 February 10, 2022, and through the production of documentation showing Sadr’s 17 monthly payments to Bancaya on April 15, 2022. See ECF No. 35, at 8–9. On April 28, 18 2022, Plaintiffs filed a Motion for Leave to File the FAC, which sought to add Bancaya as 19 a Defendant. See id. A couple months later, on July 1, 2022, the assigned magistrate 20 judge denied a motion for a protective order filed by Sadr Defendants on procedural 21 grounds. ECF No. 63. The magistrate judge also denied four of Plaintiffs’ motions to 22 compel discovery responses on procedural grounds on July 5, 2022. ECF No. 64. 23 Plaintiffs filed their first Administrative Motion for an Order Vacating the Current 24 Discovery Cut-off on September 6, 2022. ECF No. 82. This Court granted that Motion 25 and Plaintiffs’ Motion for Leave to File the FAC on September 21, 2022, and the 26 deadline to complete non-expert discovery was extended by 180 days to March 21, 27 2023. See ECF No. 97. Plaintiff subsequently filed the operative FAC on September

28 3 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure. 1 27, 2022. ECF No. 101. That same day, the magistrate judge granted in part and 2 denied in part Plaintiffs’ motions to compel discovery responses and denied Sadr 3 Defendants’ motion for a protective order. ECF Nos. 102–03. 4 On October 18, 2022, Sadr Defendants filed a Motion to Dismiss the FAC, which 5 was fully briefed. ECF Nos. 107, 115, 118. The magistrate judge granted another 6 motion to compel filed by Plaintiffs on February 9, 2023. ECF No. 129. Plaintiffs 7 subsequently filed a motion for sanctions on February 10, 2023, and noticed it before the 8 magistrate judge, but a ruling has not yet issued. ECF No. 130; see ECF No. 176 9 (vacating hearing on the motion for sanctions in light of the Court’s order staying the 10 case). 11 On February 16, 2023, before the Court could issue an order on the Motion to 12 Dismiss, Sadr Defendants filed a Motion for Summary Judgment, which stated that they 13 withdrew their Motion to Dismiss as a result. ECF No. 137, at 2. Plaintiffs filed their 14 second Administrative Motion to Vacate the Current Discovery Cut-off on the same day 15 following Sadr Defendants’ refusal to stipulate to extend the discovery deadline. ECF 16 No. 140; see also Ex. 3, id., at 29–35 (emails between counsel). 17 On March 9, 2023, the magistrate judge denied Plaintiffs’ motion to compel 18 responses to a second set of requests for production. ECF No. 151. Sadr Defendants 19 filed a request for entry of default against Bancaya on March 13, 2023, which was 20 declined by the Clerk of Court on grounds that Bancaya “is a resident of a foreign 21 country whose 90 day response time has not yet expired.” ECF Nos. 156, 158. On 22 March 17, 2023, the magistrate judge denied Plaintiffs’ motion to compel a non-party to 23 respond to a subpoena on procedural grounds. ECF No. 168. Days later, on March 27, 24 2023, Plaintiffs filed their Motions for Alternative Service of subpoenas on non-parties 25 Heydari and Nelson. ECF Nos. 171–72. In light of the numerous pending motions, the 26 Court stayed the case on April 5, 2023. ECF No. 175. 27 /// 28 /// 1 B. Attempted Service of Subpoenas on Heydari and Nelson 2 1. Heydari 3 Heydari is an attorney at CLF and works with Sadr. See Ex. 4, Sadr Dep., ECF 4 No. 171, at 39–41. On August 29, 2022, Heydari was personally served at his residence 5 in San Diego, California, with the first “Subpoena to Testify at a Deposition in a Civil 6 Action” and an attachment containing requests for production of documents. See 7 Ex. 3, Sifers Decl., id., at 36. Heydari subsequently filed a motion to quash the 8 subpoena, which the magistrate judge granted on December 15, 2022. See ECF 9 Nos. 110, 122. 10 On January 6, 2023, Plaintiffs issued their second “Subpoena to Testify at a 11 Deposition in a Civil Action” with an appearance date of February 10, 2022, and 12 Plaintiffs’ counsel instructed the process server to personally serve Heydari at the same 13 residence. Sifers Decl., ECF No. 171, at 13 ¶¶ 7–8. According to the process server’s 14 “Declaration of Reasonable Diligence,” the following attempts to personally serve 15 Heydari at his residence were made, some of which Heydari disputes: 16 1. January 13, 2023, at 10:10 a.m.: “Attempted service, subject not home. 17 Per concierge, subject is on vacation and is not sure when [he]’ll be back.” 18 Heydari states he was on vacation. 19 2. January 16, 2023, at 11:13 a.m.: “Attempted service, subject not home per 20 concierge. Not sure if back from vacation.” Heydari states he was on 21 vacation. 22 3. January 23, 2023, at 5:20 p.m.: “Attempted service, there was no 23 answer[.]” Heydari states he “was out for work, and hadn’t returned home 24 yet.” 25 4. January 28, 2023, at 8:20 a.m.: “Attempted service, there was no answer. 26 No movement, no response, no activity.” Heydari states that this attempt 27 was made “during work hours[.]” 28 /// 1 5. January 30, 2023: “STAKEOUT AT RESIDENCE (2hrs): 7:30 AM – 9:30 2 AM – No activity throughout stakeout. Attempted service, there was no 3 answer. No one left or entered the unit.” Heydari disputes this, claiming 4 that the process server could not “know whether or not any activity occurs 5 at [his] unit door without getting past the concierge at the entrance to [the] 6 complex, much less conduct a two-hour stake-out as they have claimed.” 7 See Ex. 6, Sifers Decl., id., at 51–52; Heydari Decl., ECF No. 178, at 6–7. On March 2, 8 2023, Plaintiffs’ counsel emailed the subpoena to Heydari, but he did not respond. See 9 Ex. 7, Sifers Decl., ECF No. 171, at 54. 10 2. Nelson 11 Nelson is the office manager at CLF. See Ex. 1, Sadr Dep., ECF No. 172, at 23– 12 24. On September 30, 2022, after multiple attempts, Nelson was personally served at 13 her residence in San Diego, California, with the first “Subpoena to Testify at a Deposition 14 in a Civil Action” and an attachment containing requests for production of documents. 15 See Exs. 3–4, Sifers Decl., id., at 42–48. Like Heydari, Nelson also filed a motion to 16 quash the subpoena, which the magistrate judge granted on December 15, 2022. See 17 ECF Nos. 108, 122. 18 On January 6, 2023, Plaintiffs issued their second “Subpoena to Testify at a 19 Deposition in a Civil Action” with an appearance date of February 10, 2022, and 20 Plaintiffs’ counsel instructed the process server to personally serve Nelson at the same 21 residence. Sifers Decl., ECF No. 172, at 14 ¶¶ 7–8. According to the process server’s 22 “Not Found or Non Service Return” form, the following attempts to personally serve 23 Nelson at her residence were made, most of which Nelson disputes based on the history 24 of her doorbell camera with a motion detector: 25 1. January 12, 2023, at 4:51 p.m.: “Attempted service, A Caucasian/F[emale] 26 about 13–15 [years old] said the subject doesn’t live here, then told [the 27 server] to get off her property. There is a silver SUV in the driveway, 28 [license omitted]. They were avoiding before.” Nelson states that her 1 niece “answered and told the man [Nelson] was not home. Since she was 2 there alone, she told him to leave.” Furthermore, Nelson generally claims 3 that she has five vehicles and that she “utilize[s] more than one,” so “[j]ust 4 because the SUV is there, does not mean” she is. 5 2. January 14, 2023, at 7:40 a.m.: “Attempted service, there was no answer.” 6 Nelson claims that “no motion was detected and no one rang the doorbell 7 around” this time. 8 3. January 15, 2023, at 4:15 p.m.: “Attempted service, there was no answer. 9 Gate is locked, car is here.” Nelson again claims that “no motion was 10 detected and no one rang the doorbell around” this time. 11 4. January 16, 2023, at 7:19 a.m.: “Attempted service, there was no answer. 12 No changes, same car in driveway.” Nelson does not address this in her 13 declaration. 14 5. January 18, 2023, at 2:45 p.m.: “Attempted service, there was no answer. 15 Heard someone talking inside. Evading service.” Nelson again claims that 16 “no motion was detected and no one rang the doorbell around” this time. 17 6. January 20, 2023, at 6:05 p.m.: “Attempted service, there was no answer. 18 The SUV is present.” Nelson claims that she “was out at an appointment” 19 but that “no motion was detected and no one rang the doorbell around” this 20 time. 21 7. January 21, 2023, at 7:13 a.m.: “Attempted service, there was no answer. 22 No change.” Nelson again claims that “no motion was detected and no 23 one rang the doorbell around” this time. 24 8. January 27, 2023, at 6:10 a.m.: “STAKEOU[T] AT RESIDENCE (2hrs): 25 Lights inside garage. Her car is in the driveway. House dark. / 7:00[] AM 26 No activity / 8:10 AM – Attempted service, there was no answer, nobody 27 left.” Nelson claims that “it would have been impossible if someone was 28 /// 1 outside on a stakeout not to have seen [her] leave taking the kids to 2 school.” 3 9. January 28, 2023, at 7:04 a.m.: “Attempted service, there was no answer.” 4 Nelson again claims that “no motion was detected and no one rang the 5 doorbell around” this time. 6 10. January 29, 2023, at 7:10 p.m.: “Attempted service, there was no 7 answer.” Nelson claims that she “was at an appointment[.]” 8 See Ex. 7, Sifers Decl., id., at 67; Nelson Decl., ECF No. 169, at 6–7. On March 2, 9 2023, Plaintiffs’ counsel emailed the subpoena to Nelson, but she did not respond. See 10 Ex. 8, Sifers Decl., ECF No. 172, at 70. 11 C. Service on Bancaya 12 On April 13, 2022, Plaintiffs’ counsel states that he located Bancaya’s LinkedIn 13 profile, which listed an address in the Philippines. Sifers Decl., ECF No. 184, at 11 ¶ 3; 14 see Ex. 2, id., ECF No. 184-2 (screenshot of a LinkedIn profile for Ryan Bancaya). As 15 previously stated, this Court granted Plaintiffs’ Motion for Leave to File the FAC to add 16 Bancaya as a Defendant on September 21, 2022, and Plaintiffs filed the FAC on 17 September 27, 2022. ECF Nos. 97, 101. Plaintiffs’ counsel states that his office began 18 their attempts to serve Bancaya in the Philippines in accordance with the Convention on 19 the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial 20 Matters (“Hague Service Convention”) and the Filipino Guidelines and Rules of Civil 21 Procedure. See Sifers Decl., ECF No. 184, at 12 ¶ 8. 22 On October 18, 2022, Plaintiffs’ counsel submitted the Summons and FAC, 23 Request for Service Abroad of Judicial or Extrajudicial Documents, and confirmation of 24 payment to the Service Convention Unit for the Office of the Court Administrator of the 25 Supreme Court of the Philippines (“Service Convention Unit”). Id. at 13–14 ¶ 12. The 26 Service Convention Unit confirmed receipt of the documents on October 30, 2022. Id. at 27 14 ¶ 13. 28 /// 1 On December 16, 2022, and January 5, 2023, Plaintiffs’ counsel reached out to 2 the Regional Trial Court in Silay City, Negros Occidental (“Regional Trial Court”) for a 3 status update. Id. at 14 ¶ 15. On January 9, 2023, the Regional Trial Court sent the 4 following email: 5 Please send us the exact address of Ryan Bancaya for the following reasons: 6 1. There are many Bancayas in Silay City 7 2. After diligent efforts, we could not trace his whereabouts 8 9 Ex. 13, id., ECF No. 184-13, at 2–3. The next day, on January 10, 2023, Plaintiffs’ 10 counsel emailed the address found on the LinkedIn profile to the Regional Trial Court. 11 Id. at 2. Plaintiffs’ counsel states the following: 12 I believe that the Regional Trial Court, using the address we provided, was able to use its[] resources to determine that 13 Defendant Bancaya resided at Centerville. The Centerville address is located within three miles of the address I provided 14 from Defendant Bancaya’s LinkedIn profile. Shortly thereafter, I believe a process server was assigned to effectuate service 15 on Defendant Bancaya. 16 Sifers Decl., ECF No. 184, at 14–15 ¶ 15. 17 Between January 17 and February 3, 2023, Plaintiffs’ counsel states that his 18 office “made multiple inquiries as to the status on the service of Defendant Bancaya and 19 [counsel] was informed that the Regional Trial Court had been unable to effectuate 20 service.” Id. at 15 ¶ 17. On February 6, 2023, the Regional Trial Court stated in an 21 email that personal service was attempted on January 27, February 2, and February 6, 22 but Bancaya was “not around.” Ex. 15, id., ECF No. 184-15, at 2. However, on 23 February 7, 2023, Plaintiffs’ counsel states that his office received confirmation that 24 Bancaya was served. Sifers Decl., ECF No. 184, at 15–16 ¶ 19. According to the proof 25 of service filed with the Court on February 8, 2023, a Filipino process server says that he 26 unsuccessfully made three attempts on different days to personally serve Bancaya, but 27 on February 7, the summons was served on a housekeeper “with sufficient age and 28 discretion” at the residence “who acknowledged recei[pt] [of] the summons and 1 complaint with Annexes and refused to sign.” See ECF No. 128. On February 10, 2023, 2 Plaintiffs’ counsel “caused [his] office to serve” written discovery requests and a notice of 3 deposition scheduled for March 16, 2023. Sifers Decl., ECF No. 140, at 9 ¶ 5. To date, 4 Bancaya has not appeared in this action or responded to Plaintiffs’ discovery requests. 5 6 STANDARDS 7 8 A. Motion for Alternative Service 9 Rule 45(b)(1) states that “[s]erving a subpoena requires delivering a copy to the 10 named person[.]” “The majority rule is that Rule 45 requires personal service, as 11 opposed to service by mail.” RP Golden State Mgmt., LLC v. Ohio Sec. Ins. Co., No. 12 1:19-cv-00600-DAD-JLT, 2020 WL 4748324, at *5 (E.D. Cal. Aug. 17, 2020) (collecting 13 cases). “However, a growing but still minority trend among courts has been to allow 14 substitute service of a Rule 45 subpoena via alternative methods, such as mail delivery 15 pursuant to a court order.” Id. (collecting cases). “Courts are more inclined to grant 16 such alternative service where the serving party has provided sufficient evidence of its 17 earlier diligence in attempting to effectuate personal service.” Fujikura Ltd. v. Finisar 18 Corp., No. 15-mc-80110-HRL (JSC), 2015 WL 5782351, at *5 (N.D. Cal. Oct. 5, 2015); 19 see Hardy v. Moreno, No. 1:21-cv-00327-ADA-EPG (PC), 2022 WL 4667108, at *1 (E.D. 20 Cal. Sept. 30, 2022) (finding service of the subpoena by mail appropriate due to the non- 21 party’s refusal to accept service). Even if the Court grants alternative service, the 22 method must still be “reasonably calculated to provide timely, fair notice and an 23 opportunity to object or file a motion to quash.” Fujikura, 2015 WL 5782351, at *5. 24 B. Service Under Rule 4(f) and the Hague Service Convention 25 Rule 4(f)(1) provides, in relevant part, that 26 [u]nless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose 27 waiver has been filed—may be served at a place not within any judicial district of the United States: 28 1 by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized 2 by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents[.] 3 4 Under the Hague Service Convention, the Central Authority of the country where the 5 defendant is located will effectuate service. See Convention on the Service Abroad of 6 Judicial and Extrajudicial Documents in Civil or Commercial Matters arts. 3–5, Nov. 15, 7 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. Specifically, 8 [t]he Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an 9 appropriate agency, either – 10 (a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within 11 its territory, or 12 (b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State 13 addressed. 14 Id. at art. 5. The Central Authority must complete a certificate which “shall state that the 15 document has been served and shall include the method, the place and the date of 16 service and the person to whom the document was delivered. If the document has not 17 been served, the certificate shall set out the reasons which have prevented service.” Id. 18 at art. 6. Both the United States and the Philippines are signatories to the Hague 19 Service Convention. See Hague Conference on Private International Law, 20 https://www.hcch.net/en/states/hcch-members/details1/?sid=121 (last visited August 7, 21 2023). 22 C. Motion to Vacate Current Discovery Cut-Off 23 Generally, the Court is required to enter a pretrial scheduling order within 90 days 24 of service of the complaint. Fed. R. Civ. P. 16(b). The scheduling order “controls the 25 course of the action” unless modified by the Court. Fed. R. Civ. P. 16(d). Orders 26 entered before the final pretrial conference may be modified upon a showing of “good 27 cause,” Fed. R. Civ. P. 16(b), but “[t]he court may modify the order issued after a final 28 /// 1 pretrial conference only to prevent manifest injustice.” Fed. R. Civ. P. 16(e); see also 2 Johnson v. Mammoth Recreations, 975 F.2d 604, 608 (9th Cir. 1992). 3 Rule 16(b)’s “good cause” standard primarily considers the diligence of the party 4 seeking the amendment. Id. at 609. The district court may modify the pretrial schedule 5 “if it cannot reasonably be met despite the diligence of the party seeking the extension.” 6 Id.; Fed. R. Civ. P. 16 advisory committee's notes (1983 amendment). Moreover, 7 carelessness is not compatible with a finding of diligence and offers no reason for a 8 grant of relief. Johnson, 975 F.2d at 609. “Although the existence or degree of 9 prejudice to the party opposing the modification might supply additional reasons to deny 10 a motion, the focus of the inquiry is upon the moving party’s reasons for seeking 11 modification.” Id. (citing Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 12 (D. Me. 1985)). If the moving party was not diligent, the Court’s inquiry should end. Id. 13 14 ANALYSIS 15 16 A. Plaintiffs’ Motions for Alternative Service 17 Because their process servers made numerous unsuccessful attempts to serve 18 Heydari and Nelson with deposition subpoenas at their residences, Plaintiffs ask the 19 Court to permit service of the subpoenas and copies of the Court’s order by alternative 20 means, specifically as follows: (1) delivery “by U.S. Mail, First Class, Postage Prepaid, 21 and by Certified Mail, Return Receipt Requested, Postage Prepaid,” to Heydari and 22 Nelson’s residences; (2) delivery “by U.S. Mail, First Class, Postage Prepaid, and by 23 Certified Mail, Return Receipt Requested, Postage Prepaid,” to their place of business 24 located at 1455 Frazee Road, Suite 500, San Diego, California 92108; (3) delivery to 25 their email addresses; and (4) personal delivery at their residences by “knock[ing] on the 26 door and provid[ing] a copy to any person answering,” but if no one answers the door, 27 the process server shall leave copies of the documents “at the door in a conspicuous 28 place.” See ECF Nos. 171, at 9; 172, at 9–10. Heydari and Nelson each filed near- 1 identical oppositions to these Motions, both of which merely argue that service by 2 publication is not appropriate. See ECF Nos. 169, at 4–5; 178, at 4–5. There is no 3 request to serve by publication before the Court, however, so these arguments are 4 irrelevant. 5 As previously stated, a minority of courts allow alternative service usually when 6 “the serving party has provided sufficient evidence of its earlier diligence in attempting to 7 effectuate personal service.” Fujikura, 2015 WL 5782351, at *5. Here, the process 8 server made numerous attempts to serve Heydari and Nelson at their residences on 9 multiple days and at different times. See Ex. 6, Sifers Decl., ECF No. 171, at 51–52; 10 Ex. 7, Sifers Decl., ECF No. 172, at 67. While Heydari and Nelson have given various 11 reasons as to why they were not present, the Court finds that Plaintiffs and their process 12 server have been extremely diligent in trying to effectuate personal service, especially 13 since Heydari and Nelson were personally served with the initial subpoenas at the same 14 residences back in August and September 2022. See Ex. 3, Sifers Decl., ECF No. 171, 15 at 36; Ex. 4, Sifers Decl., ECF No. 172, at 48. Neither Heydari nor Nelson have even 16 addressed Plaintiffs’ proposed alternative service plan, let alone attempted to explain 17 why it would be insufficient or improper, other than to object to Plaintiffs’ counsel 18 emailing them. See Nelson Decl., ECF No. 169, at 7; Heydari Decl., ECF No. 178, at 6. 19 In fact, both of them state in their declarations that Plaintiffs’ counsel “can mail letters at 20 [their] address[es], and [they] will get them.” See id. 21 Accordingly, the Court finds that in this instance, alternative service of the 22 subpoenas on Heydari and Nelson is appropriate. However, the Court will only permit 23 service of the subpoenas by mail to Heydari and Nelson’s residences and office. 24 Therefore, Plaintiffs’ Motions for Alternative Service are GRANTED as to service by mail 25 but DENIED as to the other alternative methods. 26 B. OSC as to Service on Bancaya 27 As previously stated, this Court ordered Plaintiffs to show cause in writing as to 28 whether Bancaya was properly served. ECF No. 183. According to Plaintiffs’ counsel, 1 Filipino Rule of Civil Procedure 14, § 6, allows substituted service in the following 2 instance: 3 If, for justifiable causes, the defendant cannot be served personally after at least three (3) attempts on two (2) separate 4 dates, service may be effected: 5 (a) By leaving copies of the summons at the defendant’s residence to a person at least eighteen (18) years of age and 6 of sufficient discretion residing therein[.] 7 Ex. 6, Sifers Decl., ECF No. 184-6, at 2. Because the Filipino authorities unsuccessfully 8 attempted to personally serve Bancaya three times, Plaintiffs’ counsel states it was 9 proper to serve the housekeeper. See ECF No. 184, at 9. The Court agrees. 10 Accordingly, because the Court finds that Bancaya was properly served in accordance 11 with Rule 4(f), the Hague Service Convention, and the Filipino Rules of Civil Procedure, 12 the OSC issued on July 14, 2023, is DISCHARGED. 13 C. Plaintiffs’ Second Administrative Motion for Order Vacating the Current Discovery Cut-off 14 15 Like with their previous Motion, Plaintiffs once again ask the Court to continue the 16 fact discovery deadline by six to eight months. See ECF No. 140, at 6. First, Plaintiffs 17 argue that this is necessary “[g]iven the need to conduct discovery on the claims and 18 parties to the [FAC], and the pending ruling on [Sadr] Defendants’ Motion to Dismiss, 19 which will likely result in Defendants filing an Answer and discovery being conducted on 20 that Answer[.]” Id. at 5. However, Sadr Defendants withdrew their Motion to Dismiss 21 and aside from adding Bancaya as a Defendant, the material allegations in the FAC are 22 the same as those in the original Complaint. Sadr Defendants thus are “not required to 23 file a new answer to an amended complaint when the allegations in the amended 24 complaint do not ‘change the theory or scope of the case.’” KST Data, Inc. v. DXC Tech. 25 Co., 980 F.3d 709, 715 (9th Cir. 2020) (citation omitted). 26 Plaintiffs also assert that Sadr Defendants “have failed and refused to respond to 27 a number of discovery requests which will necessitate additional law and motion[.]” ECF 28 No. 140, at 6 (stating that there are “various discovery disputes, namely Defendants’ 1 refusal to respond to some of Plaintiffs’ written discovery” and that “there are a multitude 2 of outstanding discovery issues to which the parties intend to seek Court intervention.”). 3 Aside from these generic statements, Plaintiffs have not provided any indication as to 4 what discovery from Sadr Defendants is still outstanding and why they have not been 5 able to acquire it after three years of litigation. As set forth above, Plaintiffs have filed 6 numerous motions to compel discovery responses over the course of this litigation and 7 the magistrate judge has ruled on all of them except one pending motion for sanctions. 8 Lastly, Plaintiffs argue that a discovery extension is appropriate because Bancaya 9 was just served. See id. at 6. However, Bancaya has not yet appeared in this action 10 despite Plaintiffs serving him with the FAC, written discovery requests, and a notice of 11 deposition. When a defendant fails to appear, the proper recourse for a plaintiff is to 12 obtain an entry of default. See Fed. R. Civ. P. 55(a). Although Plaintiffs want Bancaya 13 to respond to their discovery requests, this case cannot remain at a standstill waiting for 14 one party who may or may not respond. 15 Because the Court is granting Plaintiffs’ Motions for Alternative Service, fact 16 discovery will need to be reopened to conduct the depositions of Heydari and Nelson. 17 As a result, the Court is inclined to give Plaintiffs one last opportunity to obtain discovery 18 from Bancaya. With that said, the Court finds that Plaintiffs have not demonstrated good 19 cause to reopen all non-expert discovery for six to eight months. Therefore, the Court 20 will extend the discovery deadline by ninety (90) days only for the limited purposes of 21 (1) serving subpoenas on and conducting depositions of Heydari and Nelson and 22 (2) obtaining discovery from Bancaya. No good reason has been presented and the 23 Court will not extend the fact discovery deadline again. 24 D. Sadr Defendants’ Motion for Summary Judgment 25 Because discovery is being reopened for limited purposes, Sadr Defendants’ 26 Motion for Summary Judgment, ECF No. 137, is DENIED without prejudice. 27 /// 28 /// 1 CONCLUSION 2 3 For the foregoing reasons, the Court orders the following: 4 1. Plaintiffs’ Motions for Alternative Service, ECF Nos. 171-72, are each 5 | GRANTED in part and DENIED in part. Not later than seven (7) days from the issuance 6 | of this Memorandum and Order, Plaintiffs shall serve Heydari and Nelson a copy of the 7 | subpoena and a copy of this Memorandum and Order by mail delivery to their | residences and office only. 9 2. The OSC issued on July 14, 2023, ECF No. 183, is DISCHARGED. 10 3. Plaintiffs’ Administrative Motion for an Order Vacating the Current 41 | Discovery Cut-off, ECF No. 140, is GRANTED in part and DENIED in part. Discovery is 42 || reopened for ninety (90) days for the following limited purposes only: (a) serve 43 || subpoenas on and conduct depositions of Heydari and Nelson and (b) obtain discovery 44 | from Bancaya. 15 4. Sadr Defendants’ Motion for Summary Judgment, ECF No. 137, is 46 | DENIED without prejudice. 17 5. The stay imposed on April 5, 2023, ECF No. 175, is LIFTED. 18 IT IS SO ORDERED. Dated: August 11, 2023 KK, Matte; nf LEK 21 SENIOR UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 16