Hoard v. Capital One, N.A.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 AZLYNNE HOARD and CHIQUITA Case No.: 3:24-cv-01133-JLS-VET 11 PLENTY, individually and on behalf of 12 themself and all others similarly situated, ORDER GRANTING PLAINTIFFS’ MOTION FOR ALTERNATIVE 13 Plaintiffs, SERVICE 14 v. [Doc. No. 59] 15 CAPITAL ONE, N.A, 16 Defendant. 17 18 Before the Court is Plaintiffs’ Motion for Alternative Service (“Motion”). Doc. No. 19 59. Therein, Plaintiffs seek leave to serve a Rule 45 Subpoena upon a third party, Jay Kim, 20 by alternate means, specifically, via certified mail to Mr. Kim’s home address. Id. at 2. 21 Defendant Capital One did not respond to the Motion. For the reasons stated below, the 22 Court GRANTS the Motion. 23 I. LEGAL STANDARD 24 Federal Rule of Civil Procedure 45 governs subpoenas issued to third parties. Rule 25 45(b)1 provides that “[s]erving a subpoena requires delivering a copy to the named 26

27 1 All references to a “Rule” are to the Federal Rules of Civil Procedure unless otherwise 28 1 person[.]” Fed. R. Civ. P. 45(b)(1). The majority rule is that Rule 45 requires personal 2 service, as opposed to service by mail. See Chima v. U.S. Dep’t of Def., 23 F. App’x 721, 3 724 (9th Cir. 2001) (“service by mail rather than by personal service” of subpoena duces 4 tecum on defense witnesses held improper); see also In re: Ex Parte Appl. of Pro-Sys 5 Consultants & Neil Godfrey, 2016 U.S. Dist. LEXIS 142735, at *1 (N.D. Cal. Oct. 14, 6 2016) (collecting cases). 7 However, service of a Rule 45 subpoena via alternative methods, such as mail 8 delivery, may be available pursuant to court order. See In re Pro-Sys Consultants, 2016 9 U.S. Dist. LEXIS 142735, at *2 (collecting cases); Khan v. Rogers, 2018 U.S. Dist. LEXIS 10 190884, at *4 (N.D. Cal. Nov. 6, 2018) (recognizing trend permitting service by mail 11 pursuant to court order). Importantly, alternative service is available only “where the 12 serving party has provided sufficient evidence of its earlier diligence in attempting to 13 effectuate personal service.” Fujikura Ltd. v. Finisar Corp., 2015 U.S. Dist. LEXIS 14 135871, at *5 (N.D. Cal. Oct. 5, 2015). 15 II. DISCUSSION 16 Jay Kim is a former Capital One employee with purported knowledge of Defendant’s 17 Cash Advance Fee policies and practices during the relevant class period. Doc. No. 59 at 18 2. As such, Plaintiffs assert that he is critical to establishing Defendant’s liability and seek 19 to depose him. Id. Plaintiff attempted, without success, to personally serve Mr. Kim at his 20 personal residence with a Rule 45 subpoena on three separate occasions. Id. On two 21 occasions, the concierge at the residence contacted Mr. Kim, who indicated that he was not 22 present or out of town. Id. at 2–3. Plaintiffs’ process server left a door notice with the 23 concierge on at least one occasion, and in all three instances, the concierge denied the 24 process server access to Mr. Kim’s unit. Id. On the final attempt at personal service, the 25 concierge denied the posting of documents on Mr. Kim’s door. Id. at 3. 26 Under these circumstances, it appears that Mr. Kim is evading personal service. 27 Through communications from his concierge, Mr. Kim received notice of the attempts to 28 serve him with legal process yet has made no accommodations to facilitate such service. 1 concierge has similarly resisted efforts to accomplish service by denying access to 2 ||Mr. Kim’s unit and posting of notices. Moreover, Plaintiffs have been diligent in their 3 ||attempts to serve Mr. Kim via personal service. Accordingly, the Court GRANTS the 4 || Motion. 5 CONCLUSION 6 The Court GRANTS the Motion and gives Plaintiffs LEAVE to serve a Rule 45 7 || Subpoena upon Jay Kim via certified mail to his home address. 8 IT IS SO ORDERED. 9 Dated: September 9, 2025 [wre 10 Honorable Valerie E. Torres 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28