Dick v. Corman

• Court: District Court, N.D. California
• Decided: April 25, 2022
• Docket: 3:21-cv-07169
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WESLEY DICK, Case No. 21-cv-07169-JSC

8 Plaintiff, ORDER RE: MOTION FOR ENTRY OF 9 v. DEFAULT

10 D. SCOTT CORMAN, Re: Dkt. No. 21 Defendant. 11

12 13 Since Plaintiff filed suit on September 16, 2021, (Dkt. No. 1), Defendant has not answered 14 or otherwise defended himself in this case. On February 28, 2022, Plaintiff moved for entry of 15 default against Defendant. (Dkt. No. 17.) The Clerk of Court denied the motion on the grounds 16 that service of the summons via email did not meet the requirements of California Code of Civil 17 Procedure § 415.10, and the Court had not authorized alternative service. (Dkt. No. 18.) Plaintiff 18 now moves the Court to direct the Clerk to enter default. (Dkt. No. 21.) Plaintiff served the 19 motion on Defendant by email, (Dkt. No. 23), and Defendant has not filed a response. 20 BACKGROUND 21 On November 8, 2021, Plaintiff’s counsel emailed Defendant the summons, complaint and 22 attached exhibit, initial case management order, standing orders of this Court and district, civil 23 cover sheet, and notification of case assignment. (Dkt. No. 8 at 2–4.) Plaintiff’s counsel asked 24 Defendant to “confirm by responding to this email that you accept service of the summons and 25 complaint electronically.” (Id. at 4.) “Once you have done that, we will draft the appropriate 26 document to provide you with an extension of time to respond to the complaint.” (Id. at 3.) 27 Defendant responded on November 11: “As agreed on our Monday call, I willing [sic] to accept 1 accommodate the proposed payment plan we discussed.” (Id.) On November 22, Plaintiff’s 2 counsel filed a stipulation, on behalf of both parties, to extend Defendant’s deadline to respond to 3 the complaint and other case management deadlines. (Dkt. Nos. 9, 10.) 4 DISCUSSION 5 Under Federal Rule of Civil Procedure 4(e), a person may be served “pursuant to the law 6 of the state in which the district court is located.” Fed. R. Civ. P. 4(e)(1). California courts “may 7 exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the 8 United States,” Cal. Civ. Proc. Code § 410.10, and thus California allows service in any way 9 consistent with due process. See M. Lowenstein & Sons, Inc. v. Superior Court, 145 Cal. Rptr. 10 814, 816 (Cal. Ct. App. 1978) (“Basically, the only limitation is ‘fair play and substantial justice,’ 11 the constitutional requirements of due process.”), disapproved of on other grounds in Johnson & 12 Johnson v. Superior Court, 38 Cal. 3d 243, 255 n.7 (1985). “The required notice is that which is 13 reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the 14 action and afford them the opportunity to be heard.” Id. at 817. 15 “While the California Code includes no explicit provision for service by email, it provides 16 a broad framework for alternative means of service: ‘Where no provision is made in this chapter or 17 other law for the service of summons, the court in which the action is pending may direct that 18 summons be served in a manner which is reasonably calculated to give actual notice to the party to 19 be served.’” Aevoe Corp. v. Pace, No. C 11-3215 MEJ, 2011 WL 3904133, at *1 (N.D. Cal. Sept. 20 6, 2011) (quoting Cal. Civ. Proc. Code § 413.30). 21 Here, service by email was reasonably calculated to give actual notice to Defendant. 22 Plaintiff knew Defendant’s correct email address and had apparently been in contact before. More 23 importantly, service by email did give actual notice. Defendant acknowledged receipt, said he was 24 willing to accept service by email, and participated in a stipulation related to the case. Therefore, 25 service by email comports with the requirements of due process. See, e.g., United Health Servs., 26 Inc. v. Meyer, No. C 12–6197 CW, 2013 WL 843698, at *1–2 (N.D. Cal. Mar. 6, 2013); Aevoe 27 Corp., 2011 WL 3904133, at *1–2. 1 does not offend due process. See Bathija v. Vivint Wireless, Inc., No. 5:18-cv-04389-EJD, 2018 2 || WL 5906546, at *3—4 (N.D. Cal. Nov. 9, 2018) (retroactively authorizing service by email 3 because it was reasonably calculated to give actual notice and did give actual notice). Actual 4 || notice here fulfills “the constitutional purpose of service of process.” Id. at *4; see Ramos v. 5 Homeward Residential, Inc., 168 Cal. Rptr. 3d 114, 120-21 (Cal. Ct. App. 2014); see also Rio 6 || Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1018 (9th Cir. 2002) (“[W]e leave it to the 7 || discretion of the district court to balance the limitations of email service against its benefits in any 8 || particular case.”). 9 Finally, Defendant having stipulated to extend the deadline to respond to the complaint 10 || was a general appearance sufficient to “dispens[e] with the requirement of service of process.” 11 || Dial 800 v. Fesbinder, 12 Cal. Rptr. 3d 711, 726 (Cal. Ct. App. 2004), as modified (May 5, 2004) a 12 (cleaned up). “A general appearance by a party is equivalent to personal service of summons on

13 such party.” Cal. Civ. Proc. Code § 410.50(a).

14 A general appearance occurs when the defendant takes part in the action or in some manner recognizes the authority of the court to 2 15 proceed. If the defendant confines its participation in the action to 2 objecting to lack of jurisdiction over the person, there is no general 16 appearance. However, a party who seeks relief on any basis other than a motion to quash for lack of personal jurisdiction will be deemed to have made a general appearance and waived all objections to 8 defects in service, process, or personal jurisdiction. 19 || Dial 800, 12 Cal. Rptr. 3d at 726 (citations omitted). Accordingly, Defendant’s participation in 20 || the stipulation, which he anticipated in his email agreeing to accept service, (Dkt. No. 8 at 3), is an 21 alternative basis to find due process 1s satisfied. 22 CONCLUSION 23 Plaintiffs motion is GRANTED; the Clerk shall enter default. 24 This Order disposes of Docket No. 21. 25 IT IS SO ORDERED. 26 || Dated: April 25, 2022 ol) ne 27 28 JACQUELINE SCOTT CORLE United States District Judge