Peter Millar LLC v. Peter Millar LP

Opinion

1 2 3

4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 PETER MILLAR, LLC, Case No. 1:25-cv-00761-CDB

12 Plaintiff, ORDER GRANTING PLAINTIFF’S RENEWED EX PARTE MOTION FOR SERVICE OF 13 v. SUMMONS AND COMPLAINT UPON THE CALIFORNIA SECRETARY OF STATE 14 PETER MILLAR, LP, (Doc. 9) 15 Defendant. 16 14-DAY DEADLINE 17

18 Background 19 On June 23, 2025, Plaintiff Peter Millar, LLC (“Plaintiff”), initiated this action with the filing of 20 a complaint against Defendant Peter Millar LP (“Defendant”). (Doc. 1). Plaintiff brings claims 21 sounding in trademark infringement. See id. That same day, the Court issued summons for Defendant. 22 (Doc. 5). On July 2, 2025, Plaintiff filed an ex parte motion for service upon the California Secretary 23 of State. (Doc. 7). The Court denied the motion without prejudice on July 15, 2025. (Doc. 8). Pending 24 before the Court is Plaintiff’s renewed ex parte motion for service of summons and complaint upon the 25 California Secretary of State, filed on July 28, 2025. (Doc. 9). Having considered Plaintiff’s motion 26 and the declaration and exhibits attached thereto, the Court shall grant the motion for the reasons 27 explained below. 28 /// 1 Legal Standard 2 “A federal court does not have jurisdiction over a defendant unless the defendant has been 3 properly served.” See Fed. R. Civ. P. 4; Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 4 840 F.2d 685, 688 (9th Cir. 1988) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)). 5 “Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice 6 of the complaint.” Id. (quoting UFCW, Locals 197 & 373 v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th 7 Cir. 1984)). However, “without substantial compliance with Rule 4, ‘neither actual notice nor simply 8 naming the defendant in the complaint will provide personal jurisdiction.’” Id. (quoting Benny v. Pipes, 9 799 F.2d 489, 492 (9th Cir. 1986)). 10 Federal Rule of Civil Procedure 4(m) provides that “[i]f a defendant is not served within 90 days 11 after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss 12 the action without prejudice against that defendant or order that service be made within a specified 13 time.” However, “if the plaintiff shows good cause for the failure, the court must extend the time for 14 service for an appropriate period.” Id. 15 Under the Federal Rules of Civil Procedure, an individual can be served by any of the following: 16 “(A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a 17 copy of each at the individual's dwelling or usual place of abode with someone of suitable age and 18 discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or 19 by law to receive service of process.” Fed. R. Civ. P. 4(e)(2). Rule 4 also provides that proper service 20 can be made by “following state law for serving a summons in action brought in courts of general 21 jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ. P. 22 4(e)(1). 23 Pursuant to California law, a court is permitted to authorize service on a limited partnership by 24 hand delivery to the California Secretary of State. See Cal. Corp. Code § 15901.16(c)(1). Service 25 effected in this way is “deemed complete on the 10th day after delivery of the process to the Secretary 26 of State.” Id. A party requesting such service must show by affidavit that “process against a limited 27 partnership … cannot be served with reasonable diligence upon the designated agent … by hand in the 28 manner provided in Section 415.10, subdivision (a) of Section 415.20, or subdivision (a) of Section 1 415.30 of the Code of Civil Procedure …” Id. 2 California Civil Procedure Code section 415.10 allows for service by “personal delivery of a 3 copy of the summons and of the complaint to the person to be served.” Cal. Civ. Proc. Code § 415.10. 4 Section 415.20(a) allows for service “by leaving a copy of the summons and complaint during usual 5 office hours in his or her office … and by thereafter mailing a copy of the summons and complaint by 6 first-class mail, postage prepaid to the person to be served at the place where a copy of the summons 7 and complaint were left.” Id. § 415.20(a). Section 415.30(a) allows for service where copies of the 8 summons and complaint are “mailed (by first-class mail or airmail, postage prepaid) to the person to be 9 served, together with two copies of the notice and acknowledgement provided for in subdivision (b) and 10 a return envelope, postage prepaid, addressed to the sender.” Id. § 415.30(a). 11 When determining whether a requesting party has exercised “reasonable diligence,” a court must 12 examine “the affidavit to see whether the party took those steps a reasonable person who truly desired 13 to give notice would have taken under the circumstances. The ‘reasonable diligence’ requirement 14 denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his 15 agent or attorney.” Freshko Produce Servs., Inc. v. ILA Prods., Inc., No. 1:19-CV-00017-DAD-BAM, 16 2020 WL 4194019, at *4 (E.D. Cal. July 21, 2020) (citing Donel, Inc. v. Badalian, 87 Cal. App. 3d 327, 17 333 (1978) & Kott v. Super. Ct., 45 Cal. App. 4th 1126, 1137 (1996)). 18 Discussion 19 Plaintiff asserts that, on June 24, 2025, its process server attempted service at the address listed 20 for both Defendant and its agent for service of process, Jinxu Wei, as provided in Defendant’s most 21 recent filing with the California Secretary of State. Plaintiff states the address where service was 22 attempted is 3830 Saco Road, Bakersfield, California 93308 (the “Bakersfield Address”). (Doc. 9 at 2- 23 3; Doc. 9-1 ¶¶ 5-6). Plaintiff asserts that the Bakersfield Address is, in fact, an office for the company 24 DHL. The DHL representative informed the process server that they are not affiliated with Defendant 25 or Jinxu Wei. Id. 26 Accompanying Plaintiff’s motion is the declaration of counsel Shamar Toms-Anthony. (Doc. 27 9-1). Attached thereto as Exhibit 1 is the Certificate of Limited Partnership filed with the California 28 Secretary of State for Peter Millar, LP, dated June 9, 2023. Id. at 7. It provides the Bakersfield Address 1 as the principal address, the mailing address, and the address for the agent for service of process, named 2 as Jinxu Wei, who is also listed as the sole general partner. Id. The proof of service, attached as Exhibit 3 2 to counsel’s declaration, evidences three personal service attempts at the Bakersfield Address, on June 4 24, June 26, and June 27, 2025, by process server Steven Rodriguez. Steven Rodriguez records that he 5 was informed by the tenant that the Bakersfield Address is a DHL office and is not affiliated with 6 Defendant or Jinxu Wei. All three attempts were unsuccessful. Id. at 9-10. 7 Plaintiff states that it engaged an investigator who attempted to locate Defendant and Jinxu Wei, 8 including their addresses and contact information, without success. (Doc. 9 at 3; Doc. 9-1 ¶ 8). Plaintiff 9 further represents that it conducted extensive research to find a valid address at which to serve 10 Defendant, including scouring publicly available information and databases, such as the California 11 Secretary of State and Department of Real Estate’s lookups, Google web searches, Open Corporates, 12 LexisNexis Public Records, Moody’s Analytics’ Business Directory, and Bizprofile, and was unable to 13 locate a valid address. (Doc. 9 at 3; Doc. 9-1 ¶¶ 7, 9). Attached as exhibits to Plaintiff’s counsel’s 14 declaration are copies of results from searches conducted from July 22 to July 24, 2025, namely Open 15 Corporates (Doc. 9-1, Ex. 3), LexisNexis Public Records (id., Ex. 4), California Secretary of State 16 Business Search (id., Ex. 5), Moody’s Analytics’ Business Directory (id., Ex. 6), Bizprofile (id., Ex. 7), 17 and the California Department of Real Estate’s public license lookup (id., Ex. 8). 18 A search of the California Secretary of State website confirms that the Certificate of Limited 19 Partnership attached to counsel’s declaration is, in fact, the most recent such certificate on file. 20 Additionally, no other document on file provides an address for Jinxu Wei.1 As such, Plaintiff has 21 sufficiently attempted personal service upon the listed address pursuant to California Civil Procedure 22 Code § 415.10. 23 In its renewed motion, Plaintiff has provided sufficient detail to satisfy the Court that it exercised 24 “reasonable diligence” and conducted a thorough, systematic investigation in good faith when searching 25 for a valid address at which to serve Defendant. It is clear Plaintiff cannot leave a copy of the summons 26 and complaint during usual office hours and thereafter mail a copy of the summons and complaint by 27

28 1 California Secretary of State, “Business Search,” available at https://bizfileonline.sos.ca.gov/search/ business (last visited July 29, 2025). 1 || first-class mail, pursuant to California Civil Procedure Code § 415.20(a), as the address on file is n 2 || Defendant’s address. And Plaintiff cannot complete service, pursuant to California Civil Procedu 3 || Code § 415.30(a), by mailing the service documents because no address for Jinxu Wei can be located 4 Thus, Plaintiff has sufficiently shown that service cannot be completed with reasonable □□□□□□□□ 5 || by the methods set forth in California Corporations Code § 15901.16(c)(1). See Freshko Produce Sery. 6 || Inc., 2020 WL 4194019, at *5 (finding service on California Secretary of State appropriate for □□□□□□□□ 7 |\|corporation defendant where plaintiffs affidavit evidenced reasonable diligence and inability □ 8 || effectuate service pursuant to Cal. Civ. Proc. Code §§ 415.10, 415.20(a), and 415.30(a)); see al. 9 || Canfield v. Axiom Debt LLC, No. 19CV2015-MMA (JLB), 2019 WL 5788323, at *2-3 (S.D. Cal. No 10 || 6, 2019) (finding the same for limited liability company defendant). 11 Accordingly, the Court will grant Plaintiff's renewed request for service of the summons ar 12 || complaint upon the California Secretary of State. 13 Conclusion and Order 14 Based on the foregoing, it is HEREBY ORDERED that Plaintiff's renewed ex parte motion f 15 || service upon the California Secretary of State (Doc. 9) is GRANTED. 16 It is FURTHER ORDERED that Plaintiff shall file a notice, no later than 14 days from the da 17 || of issuance of this order, evidencing service upon the California Secretary of State in accordance wi 18 || the requirements set forth in Cal. Corp. Code § 15901.16. 19 ll □□ Is SO ORDERED. 20 | } Ko Dated: _ July 29, 2025 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28