1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DALRADA FINANCIAL Case No.: 3:23-cv-01183-JO-JLB CORPORATION, 12
Plaintiff, 13 ORDER GRANTING MOTION FOR v. SERVICE BY ALTERNATIVE OR 14 SUBSTITUTED SERVICE SOJAAD DIAGNOSTICS, LLC, ET AL 15 Defendants. 16 17 18 19
20 Plaintiff Dalrada Financial Corporation (“Plaintiff”) brought this action against 21 Defendants Sojaad Diagnostic, LLC, Sojaad Holdings, LLC, and Lee B. Elber in his 22 individual and official capacity as the managing member of both defendant companies. 23 Dkt. 1. Plaintiff moves for leave to serve the summons and complaint on Defendant Lee 24 B. Elber (“Defendant Elber”) by alternative or substituted method pursuant to Federal Rule 25 of Civil Procedure 4(e)(1) and the California Rules of Civil Procedure. Dkt. 6. For the 26 reasons stated below, the Court GRANTS the motion for service by alternative or 27 substituted service. 28 / / / 1 I. BACKGROUND 2 Plaintiff seeks to serve Defendant Elber by alternative methods of service because it 3 has made numerous attempts to serve him and has not yet been successful. Dkt. 6 at 2. 4 Plaintiff claims that the information Defendant Elber provided and available on the internet 5 do not reflect his true personal or business addresses. Id. at 2–3. Plaintiff has attempted 6 personal service at four different addresses collected from multiple webpages and was 7 notified at each attempt that Defendant Elber did not reside or work there. Dkt. 4 at 3–10, 8 21–23. In addition, Plaintiff’s attorney, Scott McPherson, was contacted by a resident of 9 Defendant Elber’s purported home address and informed that while Defendant Elber used 10 to rent a room there, he had not lived there for around two years. Dkt. 3 at 5–6. At one of 11 the listed locations, Plaintiff’s process server encountered Defendant Elber’s mother-in- 12 law, who that Defendant Elber did not live there and never had. Dkt. 4 at 23. Plaintiff also 13 investigated Defendant Elber’s wife, Kimberley Beth Elber, and unsuccessfully attempted 14 service at her last known address. Id. at 12–18. In light of these facts, Plaintiff alleged that 15 Defendant Elber intentionally provided false addresses and is actively evading service. 16 Dkt. 3 at 3. 17 Based on these attempts, Plaintiff filed a motion to request alternative or substituted 18 service on September 14, 2023. Dkt. 3. In response, the Court denied its motion, reasoning 19 that Plaintiff had not demonstrated that it conducted a thorough investigation and exhausted 20 reasonably available methods to locate Defendant Elber. Dkt. 5. Following the Court’s 21 order, Plaintiff requested a skip trace be performed to assist in locating Defendant Elber, 22 which resulted in two new addresses. Dkt. 6 at 3. However, Plaintiff learned that 23 Defendant Elber sold one of the addresses and Plaintiff could not locate anyone at the 24 second address. Id. Plaintiff also conducted a search of the New Jersey Division of 25 Consumer Affairs, which indicated that Defendant Elber’s medical license had expired and 26 not been renewed. Id. Finally, Plaintiff conducted a search on TruthFinder.com but that 27 search generated no new leads. Id. After exhausting these avenues, Plaintiff filed this 28 1 motion for leave to serve summons and complaint by alternative or substituted service. 2 Dkt. 6. 3 II. DISCUSSION 4 Plaintiff requests that the Court permit alternative service by either (1) leaving a 5 copy of the summons and complaint with Defendant Elber’s mother-in-law and thereafter 6 mailing a copy to the same address or (2) by publication in a newspaper published where 7 Defendant Elber was last known to have resided. Dkt. 6 at 5. The Court addresses each 8 request in turn. 9 Under Federal Rule of Civil Procedure 4(e), a plaintiff may serve an individual by 10 “following state law for serving a summons in an action brought in courts of general 11 jurisdiction in the state where the district court is located or where service is made” or by 12 “personally” serving the individual, leaving a copy at the “individual’s dwelling or usual 13 place of abode,” or “delivering a copy” to “an agent authorized by appointment or by law.” 14 Fed. R. Civ. P. 4(e). Here, as Plaintiff has been unable to locate Defendant Elber and his 15 dwelling or place of abode, he seeks to serve Defendant Elber pursuant to California’s rules 16 of service. Dkt. 6 at 5. 17 Under the California Rules of Civil Procedure, service of process of a summons and 18 complaint may be made “by delivering a copy of the summons and complaint to the 19 individual defendant personally.” Mentzer v. Vaikutyte, 2018 WL 1684340, at *4 (C.D. 20 Cal. Feb. 26, 2018) (citing Cal. Civ. Proc. Code § 415.10), report and recommendation 21 adopted, 2018 WL 1684300 (C.D. Cal. Apr. 3, 2018). “[O]nly after a good faith effort at 22 personal service has first been made,” is substituted service permitted. Id. (quoting Bd. of 23 Trs. of the Leland Stanford Junior Univ. v. Ham, 216 Cal. App. 4th 330, 337 (2013)). 24 “Ordinarily, ... two or three attempts at personal service at a proper place should fully 25 satisfy the requirement of reasonable diligence and allow substituted service to be made.” 26 Bonita Packing Co. v. O’Sullivan, 165 F.R.D. 610, 613 (C.D. Cal. 1995) (citing Bein v. 27 Brechtel–Jochim Group, Inc., 6 Cal. App. 4th 1387, 1390 (1992)). 28 1 Substituted or alternative service may be ordered as long as the “summons [is] served 2 in a manner which is reasonably calculated to give actual notice to the party to be served.” 3 Cal. Civ. Proc. Code § 413.30. “An elementary and fundamental requirement of due 4 process in any proceeding which is to be accorded finality is notice reasonably calculated, 5 under all the circumstances, to apprise interested parties of the pendency of the action and 6 afford them an opportunity to present their objections.” Bonita Packing Co., 165 F.R.D. 7 at 613–614 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 8 (1950)); Brechtel–Jochim, 6 Cal. App. 4th at 1392. “For substituted service to be 9 reasonably calculated to give an interested party notice of the pendency of the action and 10 an opportunity to be heard, [s]ervice must be made upon a person whose relationship to the 11 person to be served makes it more likely than not that they will deliver process to the named 12 party.” Bonita Packing Co., 165 F.R.D. at 614 (citing Brechtel–Jochim, 6 Cal. App. 4th at 13 1393). 14 “[A]s a last resort,” Donel, Inc. v. Badalian, 87 Cal. App. 3d 327, 332 (1978), a court 15 may also order service by publication “if upon affidavit it appears . . . that the party to be 16 served cannot with reasonable diligence be served in another manner specified in this 17 article,” Cal. Civ. Proc. Code § 415.50(a). However, “if a defendant’s address is 18 ascertainable, some other method of service must be employed.” Watts v. Crawford, 10 19 Cal. 4th 743, 749 n.5 (1995).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DALRADA FINANCIAL Case No.: 3:23-cv-01183-JO-JLB CORPORATION, 12
Plaintiff, 13 ORDER GRANTING MOTION FOR v. SERVICE BY ALTERNATIVE OR 14 SUBSTITUTED SERVICE SOJAAD DIAGNOSTICS, LLC, ET AL 15 Defendants. 16 17 18 19
20 Plaintiff Dalrada Financial Corporation (“Plaintiff”) brought this action against 21 Defendants Sojaad Diagnostic, LLC, Sojaad Holdings, LLC, and Lee B. Elber in his 22 individual and official capacity as the managing member of both defendant companies. 23 Dkt. 1. Plaintiff moves for leave to serve the summons and complaint on Defendant Lee 24 B. Elber (“Defendant Elber”) by alternative or substituted method pursuant to Federal Rule 25 of Civil Procedure 4(e)(1) and the California Rules of Civil Procedure. Dkt. 6. For the 26 reasons stated below, the Court GRANTS the motion for service by alternative or 27 substituted service. 28 / / / 1 I. BACKGROUND 2 Plaintiff seeks to serve Defendant Elber by alternative methods of service because it 3 has made numerous attempts to serve him and has not yet been successful. Dkt. 6 at 2. 4 Plaintiff claims that the information Defendant Elber provided and available on the internet 5 do not reflect his true personal or business addresses. Id. at 2–3. Plaintiff has attempted 6 personal service at four different addresses collected from multiple webpages and was 7 notified at each attempt that Defendant Elber did not reside or work there. Dkt. 4 at 3–10, 8 21–23. In addition, Plaintiff’s attorney, Scott McPherson, was contacted by a resident of 9 Defendant Elber’s purported home address and informed that while Defendant Elber used 10 to rent a room there, he had not lived there for around two years. Dkt. 3 at 5–6. At one of 11 the listed locations, Plaintiff’s process server encountered Defendant Elber’s mother-in- 12 law, who that Defendant Elber did not live there and never had. Dkt. 4 at 23. Plaintiff also 13 investigated Defendant Elber’s wife, Kimberley Beth Elber, and unsuccessfully attempted 14 service at her last known address. Id. at 12–18. In light of these facts, Plaintiff alleged that 15 Defendant Elber intentionally provided false addresses and is actively evading service. 16 Dkt. 3 at 3. 17 Based on these attempts, Plaintiff filed a motion to request alternative or substituted 18 service on September 14, 2023. Dkt. 3. In response, the Court denied its motion, reasoning 19 that Plaintiff had not demonstrated that it conducted a thorough investigation and exhausted 20 reasonably available methods to locate Defendant Elber. Dkt. 5. Following the Court’s 21 order, Plaintiff requested a skip trace be performed to assist in locating Defendant Elber, 22 which resulted in two new addresses. Dkt. 6 at 3. However, Plaintiff learned that 23 Defendant Elber sold one of the addresses and Plaintiff could not locate anyone at the 24 second address. Id. Plaintiff also conducted a search of the New Jersey Division of 25 Consumer Affairs, which indicated that Defendant Elber’s medical license had expired and 26 not been renewed. Id. Finally, Plaintiff conducted a search on TruthFinder.com but that 27 search generated no new leads. Id. After exhausting these avenues, Plaintiff filed this 28 1 motion for leave to serve summons and complaint by alternative or substituted service. 2 Dkt. 6. 3 II. DISCUSSION 4 Plaintiff requests that the Court permit alternative service by either (1) leaving a 5 copy of the summons and complaint with Defendant Elber’s mother-in-law and thereafter 6 mailing a copy to the same address or (2) by publication in a newspaper published where 7 Defendant Elber was last known to have resided. Dkt. 6 at 5. The Court addresses each 8 request in turn. 9 Under Federal Rule of Civil Procedure 4(e), a plaintiff may serve an individual by 10 “following state law for serving a summons in an action brought in courts of general 11 jurisdiction in the state where the district court is located or where service is made” or by 12 “personally” serving the individual, leaving a copy at the “individual’s dwelling or usual 13 place of abode,” or “delivering a copy” to “an agent authorized by appointment or by law.” 14 Fed. R. Civ. P. 4(e). Here, as Plaintiff has been unable to locate Defendant Elber and his 15 dwelling or place of abode, he seeks to serve Defendant Elber pursuant to California’s rules 16 of service. Dkt. 6 at 5. 17 Under the California Rules of Civil Procedure, service of process of a summons and 18 complaint may be made “by delivering a copy of the summons and complaint to the 19 individual defendant personally.” Mentzer v. Vaikutyte, 2018 WL 1684340, at *4 (C.D. 20 Cal. Feb. 26, 2018) (citing Cal. Civ. Proc. Code § 415.10), report and recommendation 21 adopted, 2018 WL 1684300 (C.D. Cal. Apr. 3, 2018). “[O]nly after a good faith effort at 22 personal service has first been made,” is substituted service permitted. Id. (quoting Bd. of 23 Trs. of the Leland Stanford Junior Univ. v. Ham, 216 Cal. App. 4th 330, 337 (2013)). 24 “Ordinarily, ... two or three attempts at personal service at a proper place should fully 25 satisfy the requirement of reasonable diligence and allow substituted service to be made.” 26 Bonita Packing Co. v. O’Sullivan, 165 F.R.D. 610, 613 (C.D. Cal. 1995) (citing Bein v. 27 Brechtel–Jochim Group, Inc., 6 Cal. App. 4th 1387, 1390 (1992)). 28 1 Substituted or alternative service may be ordered as long as the “summons [is] served 2 in a manner which is reasonably calculated to give actual notice to the party to be served.” 3 Cal. Civ. Proc. Code § 413.30. “An elementary and fundamental requirement of due 4 process in any proceeding which is to be accorded finality is notice reasonably calculated, 5 under all the circumstances, to apprise interested parties of the pendency of the action and 6 afford them an opportunity to present their objections.” Bonita Packing Co., 165 F.R.D. 7 at 613–614 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 8 (1950)); Brechtel–Jochim, 6 Cal. App. 4th at 1392. “For substituted service to be 9 reasonably calculated to give an interested party notice of the pendency of the action and 10 an opportunity to be heard, [s]ervice must be made upon a person whose relationship to the 11 person to be served makes it more likely than not that they will deliver process to the named 12 party.” Bonita Packing Co., 165 F.R.D. at 614 (citing Brechtel–Jochim, 6 Cal. App. 4th at 13 1393). 14 “[A]s a last resort,” Donel, Inc. v. Badalian, 87 Cal. App. 3d 327, 332 (1978), a court 15 may also order service by publication “if upon affidavit it appears . . . that the party to be 16 served cannot with reasonable diligence be served in another manner specified in this 17 article,” Cal. Civ. Proc. Code § 415.50(a). However, “if a defendant’s address is 18 ascertainable, some other method of service must be employed.” Watts v. Crawford, 10 19 Cal. 4th 743, 749 n.5 (1995). Reasonable diligence requires “a number of honest attempts 20 to learn defendant’s whereabouts,” such as by “inquiry of relatives” or “investigation of 21 appropriate city and telephone directories.” Id. The “reasonable diligence” requirement 22 “denotes a thorough, systematic investigation and inquiry conducted in good faith by the 23 party or his agent or attorney.” Kott v. Superior Ct., 45 Cal. App. 4th 1126, 1137 (1996). 24 Here, the Court grants Plaintiff’s request to serve Defendant Elber’s mother-in-law 25 as substituted service. See Cal. Civ. Proc. Code § 413.30. Plaintiff has attempted personal 26 service on numerous occasions and has exhausted other means of identifying Defendant 27 Elber’s addresses and familial contacts. Defendant Elber’s mother-in-law is the only point 28 of contact that Plaintiff has successfully made contact with despite its myriad efforts. Dkt. 1 4 at 23. In fact, Defendant Elber’s mother-in-law indicated that she knows him, and thus, 2 likely knows where he can be found. Id. Accordingly, the Court finds that this substituted 3 service is “reasonably calculated” to reach Defendant Elber because it is “more likely than 4 not” that the mother-in-law will deliver process to him. Bonita Packing Co., 165 F.R.D. 5 at 614 (internal citation and quotation marks omitted). 6 The Court also finds that Plaintiff has demonstrated “reasonable diligence” to permit 7 service by publication. Cal. Civ. Proc. Code § 415.50. Plaintiff has frequently attempted 8 to (1) personally serve Defendant Elber, (2) identify Defendant Elber’s location through a 9 series of different databases and search engines, and (3) locate Defendant Elber’s wife, 10 amounting to a “thorough systemic investigation and inquiry conducted in good faith.” 11 Kott, 45 Cal. App. 4th at 1137. Moreover, it appears that Defendant Elber is evading 12 service because he cannot be found at any of his listed addresses or through any familial 13 contact. The Court is therefore “more willing to allow alternative methods such as service 14 by publication.” Felix v. Anderson, 14-cv-3809-JCS, 2015 WL 545483, at *2 (N.D. Cal. 15 Feb. 9, 2015) (citing Miller v. Super. Ct., 195 Cal. App. 2d 779, 786 (1961) (“A person 16 who deliberately conceals himself to evade service of process is scarcely in a position to 17 complain overmuch of unfairness in substitutive methods” of service.)). Accordingly, the 18 Court permits service by publication in a newspaper published where Defendant Elber was 19 last known to have resided in conjunction with service at Defendant Elber’s mother-in- 20 law’s residence. 21 III. CONCLUSION 22 For the reasons set out above, the Court GRANTS Plaintiff’s motion for leave to 23 serve summons and complaint by alternative or substituted service by both (1) leaving a 24 copy of the summons and complaint with Defendant Elber’s mother-in-law at 11 Dakota 25 Street, Passaic, New Jersey 07055 and thereafter mailing a copy to the same address, AND 26 (2) by publication in a newspaper published where Defendant Elber was last known to have 27 resided. 28 It is FURTHER ORDERED that: 1 1. Plaintiff complete substituted service on Defendant Elber’s mother-in-law no 2 || later than March 15, 2024. 3 2. Plaintiff complete service by publication in a newspaper published where 4 || Defendant Elber was last known to have resided no later than March 15, 2024. Service by 5 || publication must comply with California Government Code § 6064, which provides that 6 publication in the newspaper must occur four times with five days in between each 7 || publication. 8 9 IT IS SO ORDERED.
11 Dated: February 16, 2024 — a“ 12 C7 13 Honorable Jinsook Ohta” 4 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28