Crews v. Sun Solutions AZ LLC

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jason Crews, No. CV-23-01589-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Sun Solutions AZ LLC, et al.,

13 Defendants. 14 15 Pending before the Court are two service-related motions filed by Plaintiff Jason 16 Crews (“Plaintiff”). (Docs. 12, 13.) 17 BACKGROUND 18 On August 7, 2023, Plaintiff, who is proceeding pro se, initiated this action by filing 19 the complaint and paying the filing fee. The complaint alleges that Defendant Sun 20 Solutions AZ, LLC (“Sun Solutions”) and Defendant Justin Villalobos (“Villalobos”), who 21 is Sun Solutions’ owner and manager, violated the Telephone Consumer Protection Act by 22 “orchestrat[ing] placing at [least] eight illegal telemarketing calls” to Plaintiff in July 2023, 23 without Plaintiff’s consent, “using an Automated Telephone Dialing System . . . to a 24 number assigned to a cellular service which was included on the national Do-Not-Call list.” 25 (Doc. 1 ¶¶ 1-6, 16.) The complaint further alleges that, during one of the calls, Villalobos 26 personally spoke with Plaintiff and identified himself as an agent of Sun Solutions. (Id. 27 ¶¶ 32-42.) 28 During the early stages of the case, Plaintiff was issued summonses addressed to 1 Villalobos and Sun Solutions. (Doc. 6, 11.) Plaintiff, in turn, attempted to send a waiver 2 of service to Villalobos at 6433 N. Bel Air Road in Casa Grande, Arizona, which is “the 3 address listed on the Arizona Secretary of State’s registration for Justin Villalobos[], an 4 officer of Sun Solutions, LLC.” (Doc. 12-1 at 2.) However, the mailing was returned as 5 undeliverable. (Id. at 2, 9.) Later, when Plaintiff arranged for a process server to attempt 6 to personally serve Villalobos at the same address, the “process server made contact with 7 the residents who claimed Villalobos no longer lived at that address.” (Id. at 2, 11.) 8 Plaintiff further asserts that he “has searched through various online databases to find a 9 Villalobos but has been unable to do so.” (Id. at 5.) 10 Based on these developments, Plaintiff has filed two motions. The first is an “Ex 11 Parte Application For Subpoena Duces Tecum To Determine Location Where Defendant 12 Justin Villalobos Can Be Served.” (Docs. 12, 12-1.) In this motion, Plaintiff summarizes 13 his unsuccessful attempts to serve Villalobos at the Casa Grande address. Plaintiff also 14 asserts that he has identified “third parties who are likely to possess records identifying a 15 location for service.” (Id.) First, Plaintiff asserts that Villalobos is registered as an officer 16 of Nevada Octagon Inc LLC (“Octagon”), an entity formed in Nevada in May 2023. The 17 managing member of Octagon is Robert Baxter, and based on this association, Plaintiff 18 believes that Baxter may have contact information for Villalobos. Second, Plaintiff notes 19 that Villalobos contacted him via a phone number associated with Sprint, which was 20 acquired by T-Mobile USA, and Plaintiff believes that T-Mobile may have contact 21 information for Villalobos. In light of these assertions, Plaintiff seeks permission to issue 22 two subpoenas intended to obtain “Villalobos’s most recent contact information.” The first 23 requested subpoena would be directed to T-Mobile and would seek the subscriber 24 information associated with the specific phone number that was used during the July 2023 25 phone call in which—per the complaint—Villalobos spoke to Plaintiff and identified 26 himself as an agent of Sun Solutions. The second requested subpoena would be directed 27 to Baxter and would seek “[i]dentifying information for Justin Villalobos including current 28 address, current telephone number, and current e-mail.” 1 The second pending motion seeks leave to serve Villalobos by alternative means. 2 (Doc. 13.) 3 DISCUSSION 4 I. Early Discovery To Determine Location At Which Villalobos Can Be Served 5 “A party may not seek discovery from any source before the parties have conferred 6 as required by Rule 26(f), except in a proceeding exempted from initial disclosure under 7 Rule 26(a)(1)(B), or when authorized by [the Federal Rules of Civil Procedure], by 8 stipulation, or by court order.” Fed. R. Civ. P. 26(d)(1). Thus, the early discovery Plaintiff 9 seeks is available only if permitted by court order. 10 “In fashioning discovery orders under Rule 26(d), the district courts wield broad 11 discretion, as they do when managing any aspect of discovery.” UMG Recordings, Inc. v. 12 Doe, 2008 WL 4104214, *3 (N.D. Cal. 2008). “In the Ninth Circuit, courts use the ‘good 13 cause’ standard to determine whether discovery should be allowed to proceed prior to a 14 Rule 26(f) conference.” Id. at *4. “Good cause may be found where the need for expedited 15 discovery, in consideration of the administration of justice, outweighs the prejudice to the 16 responding party.” Id. 17 Whether Plaintiff has made the required good-cause showing presents a close call. 18 It appears that Plaintiff simply looked up the address that Villalobos previously placed on 19 file with various secretaries of state, tried to serve Villalobos at that address, and then, upon 20 learning that Villalobos had moved, performed some unspecified searches of “various 21 online databases” before filing the pending motion. (Doc. 12-1 at 4 [“Plaintiff is unable to 22 identify any alternative way of obtaining contact information for the party operating the 23 telephone number. Plaintiff attempted to get the information from publicly available 24 sources, but Villalobos does not appear to be maintaining accurate contact information with 25 the various state agencies.”].) On the one hand, courts have often required litigants to make 26 more comprehensive efforts to locate a known party opponent—such as hiring a private 27 investigator—before authorizing early discovery in aid of location. See, e.g., LawRank 28 LLC v. LawRankSEO.com, 2021 WL 4461592, *2 (N.D. Cal. 2021) (“The Court recognizes 1 that some persistence and creativity may be required to effect personal service here, but 2 that circumstance is hardly uncommon. The Court notes, for example, that it is routine to 3 retain private investigators to locate and serve parties.”); Andersen, 2021 WL 6621060 at 4 *1 (“Plaintiff has not shown good cause for early discovery based on the current record 5 . . . [where] the steps Plaintiff has taken to locate Thompson to date . . . appear to be limited 6 to an unsuccessful skip trace and request for information from YouTube.”). On the other 7 hand, the Court recognizes that Plaintiff is a pro se litigant who paid the filing fee and has 8 already expended financial resources attempting to locate and serve Villalobos through 9 reasonable means. 10 Under the circumstances, the Court concludes that the appropriate outcome is to 11 grant Plaintiff’s motion in part. The proposed subpoena to T-Mobile seems reasonably 12 calculated to obtain Villalobos’s contact information, given that Villalobos apparently used 13 the phone number at issue only a few months ago to call Plaintiff, and would pose little 14 prejudice to the responding party (which frequently responds to subpoenas). In contrast, 15 the Court is unwilling (at least for now) to authorize the proposed subpoena to Baxter. Not 16 only is it somewhat speculative that Baxter (whose only apparent connection to Plaintiff is 17 that both are associated with a new business that is apparently unrelated to Sun Solutions) 18 would have Villalobos’s current contact information, but the proposed Baxter subpoena 19 would pose a heightened risk of prejudice as compared to the proposed T-Mobile subpoena. 20 Baxter, for one thing, might find it prejudicial to be forced to respond, and the Court is 21 wary of allowing Villalobos’s new business associates to be subpoenaed as part of an 22 unrelated lawsuit simply because Plaintiff’s fairly rudimentary efforts to locate Villalobos 23 have proved unsuccessful so far. 24 II. Alternative Service 25 Plaintiff’s other pending motion is a “Motion to Serve by Alternative Means of 26 Service.” (Doc. 13.) Here, Plaintiff argues that he should be authorized to serve Villalobos 27 via an unspecified alternative service method because he “has made every effort 28 practicable” to serve Villalobos through traditional means. (Doc. 13-1 at 2-3.) Plaintiff 1 adds: “It is unknown to Plaintiff wither or not Villalobos is evading service by misleading 2 process servers, or if he is misleading the State of Arizona and the State of Nevada, or both, 3 but the effect is the same.” (Id. at 3.) Plaintiff also requests a 90-day extension of the 4 service deadline “to effectuate said alternative service.” (Id.) 5 Rule 4(e) of the Federal Rules of Civil Procedure provides that an individual (with 6 exceptions not relevant here) may be served in a judicial district of the United States by: 7 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is 8 located or where service is made; or 9 (2) doing any of the following: 10

11 (A) delivering a copy of the summons and of the complaint to the individual personally; 12 13 (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion 14 who resides there; or 15 (C) delivering a copy of each to an agent authorized by 16 appointment or by law to receive service of process. 17 (Id.) Rule 4.1 of the Arizona Rules of Civil Procedure details the available state-law 18 procedures for serving process within Arizona. Under Rule 4.1(d) of the Arizona Rules, 19 an individual may be served within Arizona using the same methods outlined in Rule 20 4(e)(2) of the Federal Rules. Additionally, Rule 4.1(k) of the Arizona Rules provides for 21 alternative means of service: “If a party shows that the means of service provided in Rule 22 4.1(c) through Rule 4.1(j) are impracticable, the court may—on motion and without notice 23 to the person to be served—order that service may be accomplished in another manner,” in 24 which case “the serving party must make a reasonable effort to provide the person being 25 served with actual notice of the action’s commencement” and must, at a minimum, “mail 26 the summons, the pleading being served, and any court order authorizing an alternative 27 means of service to the last-known business or residential address of the person being 28 served.” 1 Arizona’s Rule 4.1(k) requires a showing of impracticability. Impracticability in 2 this context requires “something less than a complete inability to serve the defendant” and 3 even “something less than the ‘due diligence’ showing required before service by 4 publication may be utilized.” Blair v. Burgener, 245 P.3d 898, 901, 903-04 (Ariz. Ct. App. 5 2010). In the context of Rule 4.1(k), “impracticable” simply means that the traditional 6 means of service have proved to be “extremely difficult or inconvenient.” Id. at 903. 7 Here, Plaintiff has not proposed any form of alternative service. Considering that 8 there appears to be no valid contact information for Villalobos available to Plaintiff at this 9 time, it is difficult to conceive of an alternative means of service that would “make a 10 reasonable effort to provide [Villalobos] with actual notice of the action’s 11 commencement.” Ariz. R. Civ. P. 4.1(k). Moreover, in light of Plaintiff’s intent to serve 12 a subpoena that is reasonably likely to lead to information that will facilitate service via 13 traditional means, the request for leave to serve via alternative means appears undeveloped 14 and premature. Thus, the request is denied without prejudice. The Court will, however, 15 grant a 90-day extension of the service deadline so that Plaintiff may serve the T-Mobile 16 subpoena and make additional attempts to locate and serve Villalobos. 17 … 18 … 19 … 20 … 21 … 22 … 23 … 24 … 25 … 26 … 27 … 28 … 1 Accordingly, 2 IT IS ORDERED that: 3 1. Plaintiffs ex parte motion for the issuance of subpoenas (Doc. 12) is granted in part and denied in part. Plaintiff may serve the subpoena to T-Mobile that was 5 || provided at Doc. 12-3. 6 2. Plaintiff's motion for alternative service (Doc. 13) is denied without 7\| prejudice. 8 3. The previous service deadline (Doc. 9) is extended to a date 90 days from the issuance of this order (i.e., to February 28, 2024). Unless the Court orders otherwise, || the Clerk of Court shall terminate without further notice any Defendant in this action that 11 || has not been served by that date pursuant to Rule 4(m) of the Federal Rules of Civil □□ Procedure. 13 Dated this 30th day of November, 2023. 14 15 Am ee 16 f t _o—— Dominic W. Lanza 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28

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