Pension Benefit Guaranty Corporation v. Jim Nemlowill Hay Contracting, Inc.

• Court: District Court, S.D. California
• Decided: March 7, 2023
• Docket: 3:23-cv-00334
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PENSION BENEFIT GUARANTY Case No.: 23-CV-334 JLS (MSB) CORPORATION, 12 ORDER GRANTING PLAINTIFF’S Plaintiff, 13 MOTION FOR APPROVAL OF v. ALTERNATIVE SERVICE 14

JIM NEMLOWILL HAY 15 (ECF No. 3) CONTRACTING, INC., 16 Defendant. 17 18 19 20 21 Presently before the Court is Plaintiff Pension Benefit Guaranty Corporation’s 22 (“Plaintiff” or “PBGC”) Motion for Approval of Alternative Service (“Mot.,” ECF No. 3). 23 Plaintiff requests leave to make alternative service on Defendant Jim Nemlowill Hay 24 Contracting, Inc. through the California Secretary of State. Mot. at 1. 25 Pursuant to Federal Rule of Civil Procedure 4(h) a domestic corporation may be 26 served “in the manner prescribed by Rule 4(e)(1) for serving an individual.” Federal Rule 27 of Civil Procedure 4(e)(1), in turn, provides that an individual may be served by “following 28 state law for serving a summons in an action brought in courts of general jurisdiction in the 1 state where the district court is located or where service is made.” In other words, “[u]nder 2 Rule 4(e)(1), service is proper if it complies with California law.” Austin v. Lyft, Inc., No. 3 21-CV-09345-JCS, 2021 WL 6617452, at *1 (N.D. Cal. Dec. 13, 2021). California 4 Corporations Code § 1702(a) states: 5 If an agent for the purpose of service of process has resigned and has not been replaced or if the agent designated cannot with 6 reasonable diligence be found at the address designated for 7 personally delivering the process . . . and it is shown by affidavit to the satisfaction of the court that process against a domestic 8 corporation cannot be served with reasonable diligence upon the 9 designated agent [pursuant to California Code of Civil Procedure §§ 415.10, 415.20(a), 415.30(a), 416.10(a), 416.10(b), 10 416.10(c), or 416.20(a)], the court may make an order that the 11 service be made upon the corporation by delivering by hand to the Secretary of State, or to any person employed in the Secretary 12 of State’s office in the capacity of assistant or deputy, one copy 13 of the process for each defendant to be served, together with a copy of the order authorizing such service. 14 15 Cal. Corp. Code § 1702(a). 16 Here, Plaintiff has submitted the Declaration of Desiree M. Amador, an attorney 17 employed in the Office of General Counsel of PBGC. ECF No. 3-1. Ms. Amador avers 18 that on July 29, 2013, the Defendant “sold substantially all of its assets, ceased all 19 operations, and terminated its employees.” Id. at 2. Moreover, Defendant’s sole owner is 20 deceased, and its registered agent no longer represents Defendant, according to Ms. 21 Amador. ECF No. 3-1 at 2. Consequently, Plaintiff claims that it is “unable to complete 22 personal service of process” upon Defendant pursuant to California Code of Civil 23 Procedure §§ 415.10, 415.20(a), 415.30(a), 416.10(a), 416.10(b), 416.10(c), or 416.20(a). 24 See Mot. at 3. 25 The Court is satisfied that “process against [Defendant] cannot be served with 26 reasonable diligence upon the designated agent” pursuant to the abovementioned 27 provisions of the California Code of Civil Procedure. See Cal. Corp. Code § 1702(a). 28 Accordingly, the Court GRANTS Plaintiff’s Motion and ORDERS that service be made 1 |}upon Defendant through the California Secretary of State in accordance with California 2 || Corporations Code § 1702(a). 3 IT IS SO ORDERED. 4 Dated: March 7, 2023 tt 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28