Malachowski v. Doheny

• Court: District Court, N.D. California
• Decided: August 10, 2022
• Docket: 3:21-cv-05751
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 MARK MALACHOWSKI, Case No. 21-cv-05751-VKD

9 Plaintiff, ORDER AUTHORIZING SERVICE BY 10 v. PUBLICATION

11 ROMONA A. DOHENY, Re: Dkt. No. 25 Defendant. 12

13 14 Before the Court is plaintiff Mark Malachowski’s second ex parte application for an order 15 permitting service of summons in this action by publication upon defendant Romona Doheny, 16 pursuant to Federal Rule of Civil Procedure 4(e)(1) and California state law. Dkt. No. 25. The 17 Court previously denied Mr. Malachowski’s application for service by publication because the 18 supporting declaration did not demonstrate that he exercised reasonable diligence in serving the 19 summons before requesting permission to serve by publication. Dkt. No. 15 at 2. 20 California's Code of Civil Procedure (“CCP”) provides for service by: (1) personal 21 delivery, Cal. C.C.P. § 415.10; (2) leaving the summons and complaint with a person found at the 22 office, dwelling, or house, id. at § 415.20; (3) service by Notice and Acknowledgement of Receipt, 23 id. at § 415.30; (4) service by mail on persons outside the state, provided the return receipt is 24 returned, id. at § 415.40; and (5) service by publication, id. at § 415.50. 25 “A summons may be served by publication if upon affidavit it appears to the satisfaction of 26 the court in which the action is pending that the party to be served cannot with reasonable 27 diligence be served in another manner specified in this article.” Id. “‘Reasonable diligence’ . . . 1 his agent or attorney. A number of honest attempts to learn defendant's whereabouts or his address 2 by inquiry of relatives, friends, and acquaintances, or of his employer, and by investigation of 3 appropriate city and telephone directories, the voters’ register, and the real and personal property 4 index in the assessor's office, near the defendant's last known location, are generally sufficient 5 [and] . . . must be searched before resorting to service by publication.” Indian Hills Holdings, 6 LLC v. Frye, 337 F.R.D. 293, 300–01 (S.D. Cal. 2020) (citing Kott v. Superior Ct., 45 Cal. App. 7 4th 1126, 1137 (1996)). 8 Based on Mr. Malachowski’s declaration, the Court is satisfied that he has exercised 9 “reasonable diligence” in attempting to serve defendant Romona Doheny before resorting to 10 service by publication. Mr. Malachowski hired an investigative service to produce a 11 comprehensive report detailing “any and all property,” and “asset[s]” of the defendant. Id. at 3. 12 The investigative service also searched “telephone directories, voters’ registers,” “real and 13 personal property indexes,” and “county records database[s].” Id. at 3-4; see also Dkt. No. 21-1 at 14 11-119 (report). This search led Mr. Malachowski to believe that Ms. Doheny resides at an 15 address in Milford, Connecticut. 16 Mr. Malachowski further advises the court that he has attempted to serve Ms. Doheny six 17 times at the Milford, Connecticut address. Dkt. No. 25 at 4. He states that, in those attempts, the 18 process server encountered suspicious, evasive behavior of the residents at that address and 19 observed mail addressed to Ms. Doheny sitting near the patio door. See id. at 4-5. In short, the 20 circumstances described by Mr. Malachowski support a conclusion that Ms. Doheny is evading 21 service of process. 22 Mr. Malachowski has attempted personal and substituted service on Ms. Doheny without 23 success. While he has not attempted service by mail, Cal C.C.P. § 415.40, given the reports of 24 Mr. Malachowski’s process server that method may similarly fail. 25 Accordingly, and pursuant to Rule 4(m), the Court both authorizes Mr. Malachowski to 26 serve Ms. Doheny by publication, pursuant to Cal. C.C.P. §415.50, and orders him to also attempt 27 service by mail, pursuant to Cal. C.C.P. § 415.40. Service by publication must be completed no 1 advising the Court regarding his compliance with this order and the status of service of Ms. 2 || Doheny. 3 The Court continues the case management conference set for August 23, 2022 to 4 || November 1, 2022 at 1:30 pm. 5 IT IS SO ORDERED. 6 || Dated: August 10, 2022 7 8 VIRGINIA K. DEMARCHI 9 United States Magistrate Judge 10 11 12

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