Board of Trustees for the Laborers Health & Welfare Trust Fund for Northern California v. Empire Engineering & Construction, Inc.

• Court: District Court, N.D. California
• Decided: October 7, 2021
• Docket: 4:21-cv-04403
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BOARD OF TRUSTEES FOR THE Case No. 21-cv-04403-JSC LABORERS HEALTH & WELFARE 8 TRUST FUND FOR NORTHERN CALIFORNIA, et al., ORDER TO SHOW CAUSE RE: 9 SERVICE OF PROCESS Plaintiffs, 10 Re: Dkt. No. 13 v. 11 EMPIRE ENGINEERING & 12 CONSTRUCTION, INC., Defendant. 13 14 In this civil action, Plaintiffs, several employee benefit plans and their trustees, allege that 15 Defendant Empire Engineering and Construction, Inc. failed to pay contributions to the trust funds 16 as required by the parties’ bargaining agreements. Plaintiffs’ motion for default judgment 17 requesting unpaid contributions, liquidated damages, interest, and attorneys’ fees and costs is now 18 pending before the Court. (Dkt. No. 13.) Because the Court has concerns regarding the adequacy 19 of service, Plaintiffs are ORDERED TO SHOW CAUSE as follows. 20 DISCUSSION 21 “A federal court does not have jurisdiction over a defendant unless the defendant has been 22 served properly under Fed. R. Civ. P. 4.” Direct Mail Specialists, Inc. v. Eclat Computerized 23 Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Service on a corporation may be made by 24 delivering a copy of the summons and complaint in accordance with state law where the district 25 court is located. See Fed. R. Civ. Proc. 4(e)(1) & 4(h)(1)(A). California law states that service on 26 a corporation may be made by serving “the person designated as agent for service of process.” 27 Cal. Civ. Proc. Code § 416.10(a). Service may be completed by personal service, Cal. Civ. Proc. 1 person’s] office or, if no physical address is known, at his or her usual mailing address… with the 2 person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and 3 complaint by first-class mail, postage prepaid to the person to be served at the place where a copy 4 of the summons and complaint were left.” Cal. Civ. Proc. Code § 415.20(a). 5 Here, the summons listed Defendant’s name and address as “CLIFTON BURCH, as agent 6 of service for EMPIRE ENGINEERING & CONSTRUCTION, INC.; 180 MENDELL STREET; 7 SAN FRANCISCO CA 94124” (the “Mendell Street” address). (Dkt. No. 4.) The California 8 Secretary of State website identifies Defendant’s agent as Clifton Burch and the address for 9 service of process as the Mendell Street address. See Business Search – Entity Detail, 10 CALIFORNIA SECRETARY OF STATE, https://businesssearch.sos.ca.gov/ (select “Corporation 11 Name” search type and search “empire engineering & construction, inc.”) (last visited October 7, 12 2021). However, the Proof of Service states that the Complaint and Summons were served on 13 Defendant’s agent for service of process, Clifton Burch, by substituted service by leaving copies 14 with Muhammed Jawwad, manager, at 675 Hegenberger Rd. suite 216, Oakland, CA 94621 (the 15 “Hegenberger Road” address) as well as by mail at the same address. (Dkt. No. 6 at 1, 3.) 16 Plaintiff’s motion for default judgment does not address (1) that Defendant was served at a 17 different address than the one identified for the agent for service of process, or that (2) substituted 18 service was made on the manager and not the listed agent for service. While substituted service 19 may be proper, “Plaintiffs must [] be reasonably diligent in their attempts at direct service before 20 substitute service is permitted.” Hong-Ming Lu v. Primax Wheel Corp., No. C 04-4170 JSW, 21 2005 WL 807048, at *3 (N.D. Cal. Apr. 7, 2005). Plaintiffs have provided no information 22 regarding what efforts were made to serve Defendant prior to making substituted service. See 23 Aussieker v. M&S Green-Power Energy, Inc., No. 2:18-cv-03234-JAM-AC, 2019 WL 2183783, at 24 *4 (E.D. Cal. May 21, 2019) (recommending denial of motion for default judgment because 25 plaintiffs did not attempt personal service two or three times before using substitute service). Nor 26 have Plaintiffs shown that the Hegenberger Road address is an office address as required by Cal. 27 Civ. Proc. Code § 415.20(a). See EDJX, Inc. v. 6x7 Networks, LLC, No. 21-cv-02398-SK, 2021 1 the summons and complaint with a resident of Cannon, the defendant’s agent for service of 2 || process, at Cannon’s address would be ineffective because the plaintiff did not provide a 3 declaration showing reasonable diligence and did not state whether the address was a business 4 || address). The California Code of Civil Procedure allows service by leaving a copy of the 5 summons and complaint at the person’s usual place of business with a person apparently in charge 6 || of the office, but only in particular circumstances, which are not alleged here. See Cal. Civ. Proc. 7 || Code § 415.20(b); see also Cal. Civ. Proc. Code §§ 416.60, 416.70, 416.80, 416.90. 8 Accordingly, Plaintiffs are ORDERED TO SHOW CAUSE regarding the adequacy of 9 service. In particular, Plaintiffs shall file a written response to this Order by October 21, 2021. 10 || The October 28, 2021 hearing on Plaintiff's motion for default judgment is VACATED pending 11 disposition of this Order to Show Cause. The Court will take the motion under submission upon 12 || receipt of Plaintiffs’ response. 13 IT IS SO ORDERED. || Dated: October 7, 2021

16 ne 5 AC ELINE SCOTT CORLE nited States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28