Millennium Franchise Group, LLC v. Bank of America, N.A.

Opinion

1 2 3 4 7 8 MILLENNIUM FRANCHISE GROUP, Case No. 21-cv-08684-CRB LLC, 9

Plaintiff, ORDER GRANTING MOTION FOR 10 SERVICE BY PUBLICATION v. 11 ARIC K. PERMINTER, et al., 12 Defendants. 13 Plaintiff Millennium Franchise Group (“Millennium”) brings various causes of 14 action against Defendants Aric K. Perminter (“Aric K.”), Aric D. Perminter (“Aric D.”), 15 and Lynx Technologies Partners (“Lynx”) stemming from alleged embezzlement. First 16 Am. Compl. (dkt. 11). After a prior motion to serve Aric D. by publication was denied, 17 see dkt. 58, Millennium renews its motion. See Mot. (dkt. 64). Finding this matter 18 suitable for resolution without oral argument pursuant to Civil Local Rule 7-1(b), the Court 19 GRANTS Plaintiff’s motion. 20 While the Court’s prior order held that Millennium had failed to exercise 21 “reasonable diligence” in its attempts to serve Aric D., the Court is satisfied that 22 Millennium has now taken “those steps which a reasonable person who truly desired to 23 give notice would have taken under the circumstances.” Donel, Inc. v. Badalian, 87 Cal. 24 App. 3d 327, 333 (1978). This includes multiple attempts at mail and personal service, 25 requests for Aric D.’s address from his attorney and his father (and co-defendant), and 26 exhaustive internet and records searches. See Hubins Decl. (dkt. 64-1) ¶¶ 5–20. 27 Though service by publication is proper, the Court takes issue with Millennium’s 1 suggestion of the East Bay Express as the publication “most likely to give actual notice to 2 } [Aric D.].” Mot. 9 3. Nothing in Millennium’s investigation of Aric D. suggests that he 3 lives in California; service was attempted in New York and Pennsylvania, and the best clue 4 as to Aric. D’s current whereabouts, his LinkedIn profile, lists his city as Phillipsburg, 5 New Jersey. See Hubins Decl. 5—8, 14. While “it is generally recognized that service 6 by publication rarely results in actual notice,” Espindola v. Nunez, 199 Cal. App. 3d 1389, 7 } 1392-93 (1988), and Millennium assumes that Aric D.’s attorney will notify him once 8 service by publication is effected, see Hubins Decl. § 21, California law nonetheless 9 requires that the summons shall be published in “a named newspaper . . . that is most likely 10 to give actual notice to that party.” Cal. Code Civ. Proc. § 415.50(b). That section 11 provides that “[i]f the party to be served resides or is located out of state,” which Aric D. 12 very likely does, then the newspaper “most likely to give actual notice to that party” may € 13 || be located out of state, as well. Id. 14 Accordingly, Millennium’s motion for service by publication is GRANTED. The 15 } summons shall be published in a named newspaper located in, around, or within a a 16 || reasonable distance of Phillipsburg, New Jersey, with the ability to publish legal notices in 5 17 || accordance with California Government Code § 6064. 5 18 IT ISSO ORDERED. 19 Dated: April 26, 2023 ei 20 United States District Judge 21 22 23 24 25 26 27 28