Condor Flugdienst Gesellschaft mit beschränkter Haftung v. Elaine Brown Selan and Condor Flugdienst GmbH

• Court: District Court, S.D. California
• Decided: April 17, 2026
• Docket: 3:25-cv-02279
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CONDOR FLUGDIENST Case No.: 3:25-cv-02279-RBM-BLM GESELLSCHAFT MIT 12 BESCHRANKTER HAFTUNG, a ORDER GRANTING IN PART AND 13 German company with limited liability, DENYING IN PART PLAINTIFF’S EX PARTE APPLICATION FOR AN 14 Plaintiff, ORDER AUTHORIZING SERVICE 15 v. OF SUMMONS THROUGH ALTERNATIVE MEANS 16 ELAINE BROWN SELAN and

CONDOR FLUGDIENST GMBH, a 17 [Doc. 4] California nonprofit corporation,

18 Defendants. 19 20 21 Pending before the Court is Plaintiff Condor Flugdienst GmbH’s (“Plaintiff”) Ex 22 Parte Application for an Order Authorizing Service of Summons Through Alternative 23 Means (“Ex Parte Motion”). (Doc. 4.) For the reasons set forth below, the Ex Parte Motion 24 (Doc. 4) is GRANTED IN PART AND DENIED IN PART. 25 I. BACKGROUND 26 On September 3, 2025, Plaintiff filed a Complaint against Defendants Elaine Brown 27 Selan (“Defendant Selan”) and Condor Flugdienst Gmbh (“Defendant Condor CA”) 28 (collectively “Defendants”) alleging trademark infringement and false advertising. (Doc. 1 1 ¶ 1.) Plaintiff, a commercial airline business, alleges that Defendant Selan registered 2 Defendant Condor CA “using Plaintiff’s corporate trade name and incorporating Plaintiff’s 3 federally registered trademark.” (Id. ¶¶ 2, 10.) Plaintiff claims it has been damaged by 4 Defendants’ unauthorized use and registration of trade names and the mark “CONDOR” 5 that are virtually identical its own trade name and registered mark. (Id. ¶¶ 25–26.) Plaintiff 6 filed the instant Ex Parte Motion on November 26, 2025. (Doc. 4.) 7 II. LEGAL STANDARD 8 Federal Rule of Civil Procedure (“Rule”) 4 governs services of process. Rule 4(h) 9 allows for domestic or foreign corporations to be served “in the manner prescribed by Rule 10 4(e)(1) for serving individuals.” Fed. R. Civ. P. 4(h)(1)(A). In turn, Rule 4(e)(1) allows 11 for service of process as permitted by “state law for serving a summons in an action brought 12 in courts of general jurisdiction in the state where the district court is located or where 13 service is made.” Fed. R. Civ. P. 4(e)(1). 14 California law permits five methods of service on individuals: (1) personal service, 15 Cal. Civ. Proc. Code § 415.10; (2) “substitute service” consisting of delivery to a person 16 found at the party’s office, dwelling, or house, and subsequent mailing of service, § 415.20; 17 (3) service by mail, § 415.30; (4) service on individuals outside the state by certified or 18 registered mail with a return receipt requested, § 415.40; and (5) service by publication, 19 § 415.50. See Minden Pictures, Inc. v. Interpac Yachts, Inc., Case No.: 20-cv-739-WQH- 20 BLM, 2020 WL 5363304, at *2 (S.D. Cal. Sept. 8, 2020). 21 Sections 416.10 and 416.20 of the California Code of Civil Procedure, on the other 22 hand, govern service on corporations. Rose v. Seamless Fin. Corp. Inc., Civil No. 11cv240 23 AJB (KSC), 2013 WL 1285515, at *6 (S.D. Cal. Mar. 26, 2013). A corporation may be 24 served through the registered agent for service of process or specified officers of the 25 corporation. See Cal. Civ. Proc. Code §§ 416.10(a), 416.10(b). 26

27 1 The Court cites the paragraph numbers of the Complaint and the CM/ECF electronic 28 1 III. DISCUSSION 2 Plaintiff seeks permission to serve Defendant Condor CA through the California 3 Secretary of State and to serve Defendant Selan by publication. (Doc. 4-1 at 1, 7–14.) 4 A. Service Through the California Secretary of State 5 A court may authorize service on a corporation by hand-delivery of process to the 6 Secretary of State when a plaintiff cannot with “reasonable diligence” locate a defendant’s 7 designated agent “at the address designated for personally delivering the process,” or any 8 other person authorized to receive service. Cal. Corp. Code § 1702(a). Under California 9 Corporation Code § 1702(a), the plaintiff must demonstrate its inability to effect service 10 “with reasonable diligence” on: (1) the designated agent by hand-delivery in the manner 11 provided for in California Code of Civil Procedure §§ 415.10, 415.20(a), and 415.30(a); or 12 (2) on the corporation itself in the manner provided for in §§ 416.10(a)–(c) or 416.20(a). 13 Cal. Corp. Code § 1702(a). To determine “reasonable diligence,” the Court considers 14 whether the plaintiff “took those steps which a reasonable person who truly desired to give 15 notice would have taken under the circumstances.” Rios v. Singh, 65 Cal. App. 5th 871, 16 880–81, 280 (2021) (citing Donel, Inc. v. Badalian, 87 Cal. App. 3d 327, 332 (1978)). 17 In this case, Plaintiff has submitted the Declaration of Sarah Kelly Kilgore detailing 18 the efforts undertaken to serve Defendants. (See Doc. 4-2, Decl. of Sarah Kelly Kilgore 19 [“Kilgore Decl.”].) First, Plaintiff attempted to serve Defendant Condor CA and Defendant 20 Selan, “both in her individual capacity and as the identified ‘Registered Agent’ for 21 Defendant Condor CA” (Doc. 4-1 at 7), at the business addresses registered with the 22 California Secretary of State but found that Defendants do not conduct business or maintain 23 a mailbox at those addresses. (See Kilgore Decl. [Doc. 4-2] ¶¶ 3–4, 9, 13–15; Doc. 4-6, 24 Ex. 4 at 2–3.) Plaintiff conducted reasonable inquiries, including through paid 25 investigators, to locate Defendants without success. (Doc. 4-1 at 10–12; see Kilgore Decl. 26 [Doc. 4-2] ¶¶ 10, 14.) The private investigations team “prepared a skip trace report 27 advising that there are no current addresses associated with” Defendant Selan’s legal 28 identity and “that an 84-year-old woman named Elaine Brown Selan died on April 29, 1 2025. (Kilgore Decl. [Doc. 4-2] ¶ 11; see Doc. 4-6, Ex. 5 at 3.) Plaintiff “reviewed all 2 documents filed by Defendants with the California Secretary of State, but none identify an 3 officer, agent, or any other person that may be associated with Defendant Condor CA.” 4 (Doc. 4-1 at 12.) Plaintiff’s counsel also “located several articles discussing the high 5 number of illegitimate businesses associated with” one of the business addresses registered 6 with the California Secretary of State. (Kilgore Decl. [Doc. 4-2] ¶ 14.) 7 Next, Plaintiff “attempted to serve Defendants at a residential address believed to be 8 associated with” Defendant Selan but found the address “does not belong to and is not 9 associated with Defendants.” (Id. ¶¶ 16–17; see also Doc. 4-12, Ex. 10 ¶ 6 (attesting that 10 a process server in a different action was informed by the individual who answered the 11 door at the same address that she has owned and lived at the residence for the past 17 12 years.”). Plaintiff’s counsel identified a separate action filed in this District against 13 Defendant Selan where service has not been able to be effectuated. (See Doc. 4-2 [Kilgore 14 Decl.] ¶ 17 (citing UnitedHealth Group Inc. v. Selan, Case No. 3:24-cv-02130-JLS-BJC 15 (S.D. Cal. Nov. 13, 2024), ECF No. 1).) “Having exhausted all other efforts at service,” 16 Plaintiff’s counsel attempted to serve Defendants by certified mail at each of the three 17 identified addresses, with a return receipt requested, but did not receive delivery receipts 18 for any of the service packages mailed. (Id. ¶¶ 18–19.) 19 Based on these extensive efforts, the Court finds that Plaintiff has adequately 20 demonstrated Defendant Condor CA’s registered agent, Defendant Selan, could not be 21 found at the addresses registered with the Secretary of State. See § 1702(a). 22 Plaintiff’s efforts also demonstrate that Plaintiff attempted to serve Defendant Selan, 23 as Defendant Condor CA’s designated agent, through personal service and mail at the 24 registered addresses without success. After discovering that Defendants were not 25

26 27 2 Plaintiff suggests that “the person who incorporated Defendant Condor CA, registered himself or herself as its agent, and conducted the wrongful acts alleged in the Complaint 28 1 associated with those addresses, Plaintiff conducted several inquiries and hired an 2 investigations team to locate Defendant Selan to no avail. See Rios, 65 Cal. App. 5th at 3 880 (“A number of honest attempts to learn the defendant’s whereabouts through inquiry 4 and investigation generally are sufficient.”). Plaintiff also attempted to serve Defendant 5 Selan at a residential address but Defendant Selan was not associated with the family who 6 resides at that address. (See Kilgore Decl. [Doc. 4-2] at ¶¶ 16.) Thus, Plaintiff has 7 demonstrated that service on the corporation through its designated agent by personal 8 service, substitute service, or service by mail could not be accomplished with reasonable 9 diligence. See Cal. Civ. Proc. Code §§ 415.10, 415.20(a), 415.30(a), 416.10(a). 10 After their paid investigators discovered that an individual named Elaine Selan died 11 almost a year ago, Plaintiff tried to locate other officers, agents, or individuals that may be 12 associated with Defendant Condor CA. However, Plaintiff found there are no living 13 individuals affiliated with Defendant Condor CA or that would otherwise be authorized to 14 accept service for Defendant Condor CA. Plaintiff has therefore demonstrated that service 15 on the corporation itself could not be accomplished with reasonable diligence. See Cal. 16 Civ. Proc. Code § 416.10(b). 17 Accordingly, the Court GRANTS Plaintiff’s request to serve Defendant Condor CA 18 through the California Secretary of State in the manner set forth in California Corporations 19 Code § 1702(a). 20 B. Service by Publication 21 Plaintiff seeks to serve Defendant Selan in her individual capacity by publication 22 pursuant to California Code of Civil Procedure § 415.50(a). (Doc. 4-1 at 13–17.) 23 Under the statute, service by publication is permitted if “upon affidavit it appears to 24 the satisfaction of the court . . . that the party to be served cannot with reasonable diligence 25 be served in another manner specified” and that “a cause of action exists against the party.” 26 Cal. Civ. Proc. Code § 415.50(a). “In determining whether a plaintiff has exercised 27 ‘reasonable diligence,’ the court examines the affidavit to see whether the plaintiff ‘took 28 those steps a reasonable person who truly desired to give notice would have taken under 1 the circumstances.’” United States v. Benson, 2019 WL 6612246, at *2 (N.D. Cal. Dec. 5, 2 2019) (quoting Donel, Inc. v. Badalian, 87 Cal. App. 3d 327, 333 (1978)). 3 In addition to a showing of diligence, a party requesting service by publication must 4 also show that a “cause of action exists against the party upon whom service is to be made 5 or he or she is a necessary or proper party to the action.” Cal. Civ. Proc. Code 6 § 415.50(a)(1). To accomplish this, the party must “provide independent evidentiary 7 support, in the form of a sworn statement of facts, for the existence of a cause of action 8 against each defendant whom service by publication is requested.” Indian Hills Holdings, 9 LLC v. Frye, 337 F.R.D. 293, 302 (S.D. Cal. 2020) (citation omitted). The affidavit “must 10 be signed by someone with personal knowledge of the essential facts.” Hernandez v. Srija, 11 Inc., Case No. 19-cv-01813-LB, 2019 WL 4417589, at *2 (N.D. Cal. Sept. 16, 2019). 12 While Plaintiff has made diligent efforts to serve Defendant Selan (see Sec. III.A.), 13 the declaration submitted by Plaintiff’s counsel does not contain any factual details 14 supporting a cause of action as required under California Code of Civil Procedure 15 § 415.50(a)(1). See e.g., Indian Hills Holdings, 337 F.R.D. at 302 (holding a “declaration 16 by [plainitffs’] attorney, rather than [plainitffs’] agent or representative, which contains no 17 averments whatsoever as to what facts, if any, could support a cause of action against 18 Defendants[,] fails to meet the requirements of Section 415.50.”); Guo v. Legend Int’l Inv., 19 LP, Case No. 8:25-cv-00409-FWS-JDE, 2025 WL 3254078, at *3 (C.D. Cal. Aug. 4, 2025) 20 (finding counsel’s declaration did not “adequately demonstrate the existence of a cause of 21 action or counsel’s personal knowledge of the essential facts.”). “[S]ervice by publication 22 is neither appropriate nor valid without such an affidavit.” Aug. Home, Inc. v. Shoprime 23 Corp., Case No. 21-cv-01915-DMR, 2021 WL 5302857, at *3 (N.D. Cal. Nov. 15, 2021) 24 (quoting Cummings v. Brantley Hale, Case No. 15-cv-04723-JCS, 2016 WL 4762208, at 25 *3 (N.D. Cal. Sept. 13, 2016)). Because this procedural requirement is strictly construed, 26 Plaintiff’s request to serve Defendant Selan by publication is DENIED without prejudice. 27 See Calvert v. Al Binali, 29 Cal. App. 5th 954, 963 (2018). 28 l IV. CONCLUSION 2 Based on the foregoing reasons, Plaintiff’s Ex Parte Motion (Doc. 4) is GRANTED 3 || INPART AND DENIED IN PART.’ The Court further ORDERS as follows: 4 1. Plaintiffs Ex Parte Motion as to Defendant Condor CA is GRANTED. Plaintiff 5 SHALL serve Defendant Condor CA by hand-delivering the summons and 6 Complaint, as well as a copy of this Order, to the California Secretary of State, 7 or to any person employed in the Secretary of State’s office in the capacity of 8 assistant or deputy. See Cal. Corp. Code § 1702(a). Plaintiff shall file proof of 9 service on Defendant Condor CA on or before June 4, 2026. Service will be 10 deemed effective as of the date of filing of the proof of service. 11 2. Plaintiff's Ex Parte Motion as to Defendant Selan is DENIED WITHOUT 12 PREJUDICE. As the service deadline set by Rule 4(m) has passed, the Court 13 GRANTS Plaintiff an extension of time to effectuate service. See Efaw v. 14 Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (“District courts have broad 15 discretion to extend time for service under Rule 4(m).”). Plaintiff shall effectuate 16 service on Defendant Selan or re-file the motion for service by publication on or 17 before June 4, 2026 18 IT IS SO ORDERED. 19 ||}DATE: April 17, 2026 x Zi Barry Mtge □□ HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 22 23 24 25

27 ||? See Wells Fargo Bank, N.A. v. Ninesquare Cap. Partners, LLC, Case No.: 2:22-cv- 01277-FWS-ASX, 2022 WL 17370535, at *6 (C.D. Cal. Oct. 5, 2022) (granting similar relief).