1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Mountains of Spices LLC, No. CV-21-01497-PHX-JAT
10 Plaintiff, ORDER
11 v.
12 Sara Lihong Wei Lafrenz, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff’s Motion for Alternative Service and for 16 Additional Time to Serve Defendants. (Doc. 27). The Court now rules. 17 I. BACKGROUND 18 Plaintiff initiated this action against Defendants, alleging constructive fraud, 19 unjust enrichment, conversion, and negligent representation. (Doc. 9 at 14–18). Plaintiff 20 claims that Defendants accepted nearly $90 million for a loan program that were never 21 disbursed. (Doc. 9 at 3). 22 While Plaintiff has successfully served some of the Defendants in the action, 23 Plaintiff has been unable to serve Defendants Sara Lihong Wei Lafrenz or Qisheng Chen. 24 (Doc. 27 at 2). Plaintiff identified four addresses for Ms. Wei and attempted to serve 25 process at each of them. (Id. at 3). Plaintiff also attempted to serve process at an address 26 for the statutory agent of a company of which Ms. Wei is a member. (Id.). None of these 27 attempts were successful. (Id.). Finally, Plaintiff indicates that Ms. Wei is aware of and is 28 intentionally not engaging in the lawsuit. (Id.). 1 Plaintiff has likewise been unable to successfully serve Mr. Chen. (Doc. 27 at 4). 2 While Plaintiff successfully served a deposition and document subpoena on Mr. Chen, 3 Plaintiff alleges that Mr. Chen did not appear to the deposition. (Doc. 27 at 4). 4 Additionally, Plaintiff was unable to serve Mr. Chen with the Second Amended 5 Complaint. (Id.). Plaintiff claims that it has taken additional steps to locate Mr. Chen but 6 has been unsuccessful. (Id.). 7 Considering the difficulty Plaintiff has had in serving Ms. Wei and Mr. Chen, 8 Plaintiff now seeks alternative service through email and Discord, an internet messaging 9 service. Plaintiff believes that Ms. Wei will properly receive service through email as 10 three separate individuals who have worked with her have said that she uses those email 11 addresses. (Doc. 27 at 9). Plaintiff also wants to initiate service of process via Discord 12 which it claims that Ms. Wei is also active on. (Id. at 10). Plaintiff believes these methods 13 meet the requirements of due process as two other federal courts have authorized 14 alternative service via email and Discord on Ms. Wei. See Zhang et al v. Voice of Guo 15 Media Incorporated, No. 2:21-cv-01079 (D. Ariz. Aug. 5, 2021) (Doc. 24); Weiguo Sun, 16 et al. v. GTV Media Group, Inc., et al., No. 1:21-cv-4529 (S.D.N.Y. July 15, 2021). 17 Additionally, Plaintiff wants to serve Mr. Chen via email. (Doc. 27 at 11). Plaintiff 18 argues that this alternative service satisfies due process as his lawyers, in a separate case, 19 have identified email as a method of contacting Mr. Chen. Comerica Bank v. G-Service, 20 LLC, et al. No. CV2021-00495 (Maricopa Cty. Sup. Ct.). 21 II. LEGAL STANDARD 22 The procedural requirement of service of the summons must be satisfied before a 23 federal court may exercise personal jurisdiction over a defendant. SEC v. Ross, 504 F.3d 24 1130, 1138 (9th Cir. 2007). Accordingly, “[a] federal court is without personal 25 jurisdiction over a defendant unless the defendant has been served in accordance with 26 Fed.R.Civ.P.4.” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), amended by 807 F.2d 27 1514 (9th Cir. 1987). 28 Federal Rule 4(e)(1) allows summons to be served on an individual in a manner 1 that follows “state law for serving a summons in an action brought in courts of general 2 jurisdiction in the state where the district court is located or where service is made.” 3 Under Arizona law, when personal service has become impracticable, Arizona Rule of 4 Civil Procedure (“Arizona Rule”) 4.1(k) authorizes service by alternative means as 5 follows: If service by one of the means set forth in the preceding paragraphs of this 6 Rule 4.1 proves impracticable, then service may be accomplished in such 7 manner, other than by publication, as the court, upon motion and without notice, may direct. Whenever the court allows an alternate or substitute 8 form of service pursuant to this subpart, reasonable efforts shall be 9 undertaken by the party making service to assure that actual notice of the commencement of the action is provided to the person to be served and, in 10 any event, the summons and the pleading to be served as well as any order 11 of the court authorizing an alternative method of service, shall be mailed to the last known business or residence address of the person to be served. 12 Ariz. R. Civ. P. 4.1(k). If alternative service of process is appropriate, any proposed 13 alternative method of service must comport with constitutional notions of due process. 14 Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). To meet such 15 a requirement, the alternative method of service “must be ‘reasonably calculated under all 16 the circumstances, to apprise the interested parties of the pendency of the action and 17 afford them an opportunity to present their objections.’” Id. at 1016–17 (quoting Mullane 18 v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). 19 III. ANALYSIS 20 Plaintiff has made the requisite showing under Federal Rule 4(e)(1) to justify 21 alternative service. For the Court to grant Plaintiff’s Motion for Alternate Service, service 22 must prove impracticable. Ariz. R. Civ. P. 4.1(k). Impracticability requires “something 23 less than a complete inability to serve the defendant” and even “something less than the 24 ‘due diligence’ showing required before service by publication may be utilized.” Blair v. 25 Burgener, 245 P.3d 898, 903–04 (Ariz. Ct. App. 2010). Courts have found that 26 “impracticable” simply means that the traditional means of service have proved to be 27 “extremely difficult or inconvenient.” Id. at 904. 28 Here, the Court finds that the traditional means of service have proved to be 1 impracticable. Plaintiff has made multiple attempts to serve Defendants but have 2 discovered that Defendants are not present at their posted addresses and appear to be 3 evading service. (Doc. 27 at 2–6). This district court has regularly allowed for alternative 4 service when Plaintiff has attempted service multiple times and failed. See, e.g., Szabo v. 5 Sw. Endocrinology Associates PLLC, CV-20-01896-PHX-DWL, 2020 WL 7714569, at 6 *1–2 (D. Ariz. Dec. 29, 2020) (finding service impracticable and granting alternative 7 service after multiple attempts to serve at defendant’s residence); BMO Harris Bank, N.A. 8 v. D.R.C. Investments, L.L.C., CV-13-1692-PHX-LOA, 2013 WL 4804482, at *4 (D. 9 Ariz. Sept. 9, 2013) (same). 10 Plaintiff’s proposed alternative means of service—emailing the court papers 11 required under Ariz. R. Civ. P. 4.1(k) to Ms. Wei and Mr. Chen—constitutes “a 12 reasonable effort to provide the person being served with actual notice of the action’s 13 commencement.” Ariz. R. Civ. P. 4.1(k)(2). The Ninth Circuit has found that due process 14 requires “nothing more” than service of process by email when that “may be the only 15 means of effecting service of process” to apprise the defendant of the lawsuit. Rio, 284 16 F.3d at 1018. Courts have subsequently allowed alternative service by email even when 17 there are other means of communication available. See, e.g., See Ruffino v.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Mountains of Spices LLC, No. CV-21-01497-PHX-JAT
10 Plaintiff, ORDER
11 v.
12 Sara Lihong Wei Lafrenz, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff’s Motion for Alternative Service and for 16 Additional Time to Serve Defendants. (Doc. 27). The Court now rules. 17 I. BACKGROUND 18 Plaintiff initiated this action against Defendants, alleging constructive fraud, 19 unjust enrichment, conversion, and negligent representation. (Doc. 9 at 14–18). Plaintiff 20 claims that Defendants accepted nearly $90 million for a loan program that were never 21 disbursed. (Doc. 9 at 3). 22 While Plaintiff has successfully served some of the Defendants in the action, 23 Plaintiff has been unable to serve Defendants Sara Lihong Wei Lafrenz or Qisheng Chen. 24 (Doc. 27 at 2). Plaintiff identified four addresses for Ms. Wei and attempted to serve 25 process at each of them. (Id. at 3). Plaintiff also attempted to serve process at an address 26 for the statutory agent of a company of which Ms. Wei is a member. (Id.). None of these 27 attempts were successful. (Id.). Finally, Plaintiff indicates that Ms. Wei is aware of and is 28 intentionally not engaging in the lawsuit. (Id.). 1 Plaintiff has likewise been unable to successfully serve Mr. Chen. (Doc. 27 at 4). 2 While Plaintiff successfully served a deposition and document subpoena on Mr. Chen, 3 Plaintiff alleges that Mr. Chen did not appear to the deposition. (Doc. 27 at 4). 4 Additionally, Plaintiff was unable to serve Mr. Chen with the Second Amended 5 Complaint. (Id.). Plaintiff claims that it has taken additional steps to locate Mr. Chen but 6 has been unsuccessful. (Id.). 7 Considering the difficulty Plaintiff has had in serving Ms. Wei and Mr. Chen, 8 Plaintiff now seeks alternative service through email and Discord, an internet messaging 9 service. Plaintiff believes that Ms. Wei will properly receive service through email as 10 three separate individuals who have worked with her have said that she uses those email 11 addresses. (Doc. 27 at 9). Plaintiff also wants to initiate service of process via Discord 12 which it claims that Ms. Wei is also active on. (Id. at 10). Plaintiff believes these methods 13 meet the requirements of due process as two other federal courts have authorized 14 alternative service via email and Discord on Ms. Wei. See Zhang et al v. Voice of Guo 15 Media Incorporated, No. 2:21-cv-01079 (D. Ariz. Aug. 5, 2021) (Doc. 24); Weiguo Sun, 16 et al. v. GTV Media Group, Inc., et al., No. 1:21-cv-4529 (S.D.N.Y. July 15, 2021). 17 Additionally, Plaintiff wants to serve Mr. Chen via email. (Doc. 27 at 11). Plaintiff 18 argues that this alternative service satisfies due process as his lawyers, in a separate case, 19 have identified email as a method of contacting Mr. Chen. Comerica Bank v. G-Service, 20 LLC, et al. No. CV2021-00495 (Maricopa Cty. Sup. Ct.). 21 II. LEGAL STANDARD 22 The procedural requirement of service of the summons must be satisfied before a 23 federal court may exercise personal jurisdiction over a defendant. SEC v. Ross, 504 F.3d 24 1130, 1138 (9th Cir. 2007). Accordingly, “[a] federal court is without personal 25 jurisdiction over a defendant unless the defendant has been served in accordance with 26 Fed.R.Civ.P.4.” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), amended by 807 F.2d 27 1514 (9th Cir. 1987). 28 Federal Rule 4(e)(1) allows summons to be served on an individual in a manner 1 that follows “state law for serving a summons in an action brought in courts of general 2 jurisdiction in the state where the district court is located or where service is made.” 3 Under Arizona law, when personal service has become impracticable, Arizona Rule of 4 Civil Procedure (“Arizona Rule”) 4.1(k) authorizes service by alternative means as 5 follows: If service by one of the means set forth in the preceding paragraphs of this 6 Rule 4.1 proves impracticable, then service may be accomplished in such 7 manner, other than by publication, as the court, upon motion and without notice, may direct. Whenever the court allows an alternate or substitute 8 form of service pursuant to this subpart, reasonable efforts shall be 9 undertaken by the party making service to assure that actual notice of the commencement of the action is provided to the person to be served and, in 10 any event, the summons and the pleading to be served as well as any order 11 of the court authorizing an alternative method of service, shall be mailed to the last known business or residence address of the person to be served. 12 Ariz. R. Civ. P. 4.1(k). If alternative service of process is appropriate, any proposed 13 alternative method of service must comport with constitutional notions of due process. 14 Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). To meet such 15 a requirement, the alternative method of service “must be ‘reasonably calculated under all 16 the circumstances, to apprise the interested parties of the pendency of the action and 17 afford them an opportunity to present their objections.’” Id. at 1016–17 (quoting Mullane 18 v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). 19 III. ANALYSIS 20 Plaintiff has made the requisite showing under Federal Rule 4(e)(1) to justify 21 alternative service. For the Court to grant Plaintiff’s Motion for Alternate Service, service 22 must prove impracticable. Ariz. R. Civ. P. 4.1(k). Impracticability requires “something 23 less than a complete inability to serve the defendant” and even “something less than the 24 ‘due diligence’ showing required before service by publication may be utilized.” Blair v. 25 Burgener, 245 P.3d 898, 903–04 (Ariz. Ct. App. 2010). Courts have found that 26 “impracticable” simply means that the traditional means of service have proved to be 27 “extremely difficult or inconvenient.” Id. at 904. 28 Here, the Court finds that the traditional means of service have proved to be 1 impracticable. Plaintiff has made multiple attempts to serve Defendants but have 2 discovered that Defendants are not present at their posted addresses and appear to be 3 evading service. (Doc. 27 at 2–6). This district court has regularly allowed for alternative 4 service when Plaintiff has attempted service multiple times and failed. See, e.g., Szabo v. 5 Sw. Endocrinology Associates PLLC, CV-20-01896-PHX-DWL, 2020 WL 7714569, at 6 *1–2 (D. Ariz. Dec. 29, 2020) (finding service impracticable and granting alternative 7 service after multiple attempts to serve at defendant’s residence); BMO Harris Bank, N.A. 8 v. D.R.C. Investments, L.L.C., CV-13-1692-PHX-LOA, 2013 WL 4804482, at *4 (D. 9 Ariz. Sept. 9, 2013) (same). 10 Plaintiff’s proposed alternative means of service—emailing the court papers 11 required under Ariz. R. Civ. P. 4.1(k) to Ms. Wei and Mr. Chen—constitutes “a 12 reasonable effort to provide the person being served with actual notice of the action’s 13 commencement.” Ariz. R. Civ. P. 4.1(k)(2). The Ninth Circuit has found that due process 14 requires “nothing more” than service of process by email when that “may be the only 15 means of effecting service of process” to apprise the defendant of the lawsuit. Rio, 284 16 F.3d at 1018. Courts have subsequently allowed alternative service by email even when 17 there are other means of communication available. See, e.g., See Ruffino v. Lokosky, 425 18 P.3d 1108, 1113 (Ariz. Ct. App. 2018) (“Given our present society, we agree with the 19 superior court that modern methods of communication, especially email, were more 20 likely to give [defendant] notice of a suit than publication in a newspaper distributed in a 21 rural area 70 miles from [defendant’s] Scottsdale home.”); Johnson v. Mitchell, No. CIV 22 S-10-1968 GEB GGH PS, 2012 WL 1413986, at *5 (E.D. Cal. Apr. 23, 2012) (allowing 23 email service of process in addition to mail delivery of process). The Court finds service 24 of process on Defendants by traditional means is impracticable. The Court will grant 25 Plaintiff’s request for alternative service. 26 IV. CONCLUSION 27 For the foregoing reasons, 28 IT IS ORDERED that Plaintiff’s Motion for Alternative Service on Defendant Sara Lihong Wei Lafrenz and Qisheng Chen and for Additional Time to Serve 2|| Defendants (Doc. 27) is granted. 3 IT IS FURTHER ORDERED that service of process upon Defendant Wei may 4|| be made by emailing a copy of the Summons and Second Amended Complaint to any of || the the following email addresses: “sarawei808 @ gmail.com,” sarawei@ protonmail.com, □□ “vog202064@ protonmail.com,” and vog202064@gmail.com. Service of process upon 7\| Defendant Wei may also be made by messaging a copy of the Summons and Second 8 || Amended Complaint to “@Sara#0821” on Discord. 9 IT IS FURTHER ORDERED that service of process upon Defendant Chen may || be made by emailing a copy of the Summons and Second Amended Complaint to the 11 || following email address: “bryanchenpr@ gmail.com.” 12 IT IS FURTHER ORDERED that the deadline for service of process upon 13 || Defendants Wei and Chen is extended to February 28, 2022. 14 Dated this 17th day of February, 2022. 15 16 ¢ / i AC 17 James A. Teilborg 18 Senior United States District Judge 19 20 21 22 23 24 25 26 27 28
_5-