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44 55 66 77 United States District Court 88 Central District of California 99 1100 1111 SOCHIL MARTIN, Case No. 2:20-cv-01437-ODW (ASx)
1122 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO 1133 v. QUASH SERVICE [81]
1144 LA LUZ DEL MUNDO, et al.,
1155 Defendants.
1166 1177 I. INTRODUCTION AND BACKGROUND 1188 Plaintiff Sochil Martin initiated this case on February 12, 2020. (See Compl., 1199 ECF No. 1.) On May 15, 2020, Martin filed a Proof of Service, which states that she 2200 served the Summons and Complaint on Defendant Rahel Garcia via substitute service. 2211 (Proof of Service, ECF No. 21.) Presently before the Court is Garcia’s Motion to 2222 Dismiss under Federal Rules of Civil Procedure (“Rules”) 12(b)(5) and (b)(2) for 2233 deficient service and lack of personal jurisdiction. (See Mot. Dismiss (“Motion” or 2244 “Mot.”), ECF Nos. 81–82.) The Motion is fully briefed. (See Opp’n, ECF No. 84; 2255 Reply, ECF No. 88.) For the reasons that follow, the Court GRANTS Garcia’s 2266 Motion.1 2277
2288 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. LEGAL STANDARD 2 Under Rule 12(b)(5), a party may seek dismissal of a complaint for insufficient 3 service of process. Fed. R. Civ. P. 12(b)(5). “Service of process is a prerequisite for 4 personal jurisdiction over a defendant.” C&sm Int’l v. Prettylittlething.com Ltd., No. 5 CV 19-4046-CBM (KSx), 2019 WL 7882077, at *1 (C.D. Cal. Oct. 8, 2019) (citing 6 Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (“Defendants must be 7 served in accordance with Rule 4[] . . . or there is no personal jurisdiction.”)). “Once 8 service is challenged, [the] plaintiff[] bear[s] the burden of establishing that service 9 was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “If 10 Plaintiff fails to meet [her] burden, the court has discretion to either dismiss an action 11 entirely for failure to effect service or to quash the defective service and permit 12 reservice.” C&sm, 2019 WL 7882077, at *1 (citing S.J. v. Issaquah Sch. Dist. 13 No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006)). 14 III. DISCUSSION 15 Garcia contends the Court should dismiss her from this case pursuant to 16 Rule 12(b)(5) or, alternatively, quash service because she was not properly served 17 with the Complaint and Summons. (See generally Mot.) Specifically, Garcia argues 18 that (1) Martin failed to comply with Rule 4(f) and the Hague Convention, which 19 together govern service on a defendant in a foreign country; and (2) even if the Hague 20 Convention does not apply, Martin’s substitute service was procedurally defective. 21 (See Mot. 3–6.) The Court addresses each argument in turn. 22 A. Hague Convention 23 First, Garcia argues that, because she is a resident and citizen of Mexico, 24 service is governed by Rule 4(f) and the provisions of the Hague Convention. 25 (Mot. 3–6; Decl. of Rahel Garcia (“Garcia Decl.”) ¶ 2, ECF No. 82-1.) In opposition, 26 Martin claims Garcia is actually a dual citizen of the United States and Mexico, and 27 that she is proclaiming her Mexican citizenship as a way to “shield” herself against 28 service. (Opp’n 15–16.) The Court notes that Garcia artfully avoids clarifying her 1 United States citizenship in her declaration. (See generally Garcia Decl. (failing to 2 state whether Garcia is a citizen of the United States, as alleged by Martin).) 3 Here, both parties miss the mark. “The plain language of Rule 4(f) indicates 4 that application of the rule is not triggered by the citizenship of the individual being 5 served but rather the place in which service is effected.” Stars’ Desert Inn Hotel & 6 Country Club, Inc. v. Hwang, 105 F.3d 521, 524 (9th Cir. 1997). Martin claims to 7 have effected service on Garcia in California, not Mexico. (Opp’n 6–7; Proof of 8 Service.) Rule 4(f) and the Hague Convention, then, are not at issue. See Stars’ 9 Desert Inn Hotel & Country Club, 105 F.3d at 524; see also Agricola ABC, S.A. de 10 C.V. v. Chiquita Fresh N. Am., LLC, No. 10 CV 0772-IEG (NLSx), 2010 WL 11 2985500, at *4 (S.D. Cal. July 28, 2010) (“The fact defendants are citizens of Mexico 12 does not, in and of itself, require Plaintiff to comply with [Rule 4(f)] governing 13 service on individuals in a Foreign Country.”). Therefore, the Court finds Garcia’s 14 argument that Martin failed to comply with Rule 4(f) unpersuasive. 15 B. Substitute Service 16 Second, Garcia contends that even if Rule 4(f) does not apply, Martin’s 17 substitute service was procedurally defective and insufficient to confer personal 18 jurisdiction over her. (Mot. 5–6.) Martin responds that she properly served Garcia 19 through substitute service pursuant to California law. (Opp’n 9–13.) Here, the Court 20 agrees with Garcia. 21 Under Rule 4(e)(1), an individual may be served by “following state law for 22 serving a summons in an action brought in courts of general jurisdiction in the state 23 where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1). 24 In this case, Martin elected to follow California’s substitute service law. (See Proof of 25 Service; Opp’n 9–13.) That law permits substitute service on a defendant if the 26 plaintiff, acting with reasonable diligence, cannot complete personal service. See Cal. 27 Civ. Proc. Code § 415.20(b); see also Bein v. Brechtel-Jochim Grp., Inc., 6 Cal. App. 28 4th 1387, 1391–92 (1992) (“Ordinarily, . . . two or three attempts at personal service 1 at a proper place should fully satisfy the requirement of reasonable diligence and 2 allow substituted service to be made.”). To effect substitute service, the plaintiff must 3 leave a copy of the summons and complaint “at the person’s dwelling house, usual 4 place of abode, usual place of business, or usual mailing address other than a United 5 States Postal Service post office box.” Cal. Civ. Proc. Code § 415.20(b). 6 For service to be proper, however, “[i]t is crucial that a connection be shown 7 between the address at which substitute service is effectuated and the party alleged to 8 be served.” Corcoran v. Arouh, 24 Cal. App. 4th 310, 315 (1994). “A person can 9 have more than one dwelling house or usual place of abode” for the purposes of Rule 10 4(e). Stars’ Desert Inn Hotel & Country Club, 105 F.3d at 527. But there must be 11 “sufficient indicia of permanence”—i.e., that the property it is not a temporary 12 residence, for it to be considered the defendant’s dwelling house or usual place of 13 abode. See, e.g., Asmodus, Inc. v. Junbiao Ou, No. EDCV 16-2511 JGB (DTBx), 14 2017 WL 5592914, at *8 (C.D. Cal. Feb. 3, 2017) (finding that a defendant’s 15 investment property qualified as his dwelling house or usual place of abode where 16 there was evidence that he resided there sporadically throughout the year).
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44 55 66 77 United States District Court 88 Central District of California 99 1100 1111 SOCHIL MARTIN, Case No. 2:20-cv-01437-ODW (ASx)
1122 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO 1133 v. QUASH SERVICE [81]
1144 LA LUZ DEL MUNDO, et al.,
1155 Defendants.
1166 1177 I. INTRODUCTION AND BACKGROUND 1188 Plaintiff Sochil Martin initiated this case on February 12, 2020. (See Compl., 1199 ECF No. 1.) On May 15, 2020, Martin filed a Proof of Service, which states that she 2200 served the Summons and Complaint on Defendant Rahel Garcia via substitute service. 2211 (Proof of Service, ECF No. 21.) Presently before the Court is Garcia’s Motion to 2222 Dismiss under Federal Rules of Civil Procedure (“Rules”) 12(b)(5) and (b)(2) for 2233 deficient service and lack of personal jurisdiction. (See Mot. Dismiss (“Motion” or 2244 “Mot.”), ECF Nos. 81–82.) The Motion is fully briefed. (See Opp’n, ECF No. 84; 2255 Reply, ECF No. 88.) For the reasons that follow, the Court GRANTS Garcia’s 2266 Motion.1 2277
2288 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. LEGAL STANDARD 2 Under Rule 12(b)(5), a party may seek dismissal of a complaint for insufficient 3 service of process. Fed. R. Civ. P. 12(b)(5). “Service of process is a prerequisite for 4 personal jurisdiction over a defendant.” C&sm Int’l v. Prettylittlething.com Ltd., No. 5 CV 19-4046-CBM (KSx), 2019 WL 7882077, at *1 (C.D. Cal. Oct. 8, 2019) (citing 6 Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (“Defendants must be 7 served in accordance with Rule 4[] . . . or there is no personal jurisdiction.”)). “Once 8 service is challenged, [the] plaintiff[] bear[s] the burden of establishing that service 9 was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “If 10 Plaintiff fails to meet [her] burden, the court has discretion to either dismiss an action 11 entirely for failure to effect service or to quash the defective service and permit 12 reservice.” C&sm, 2019 WL 7882077, at *1 (citing S.J. v. Issaquah Sch. Dist. 13 No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006)). 14 III. DISCUSSION 15 Garcia contends the Court should dismiss her from this case pursuant to 16 Rule 12(b)(5) or, alternatively, quash service because she was not properly served 17 with the Complaint and Summons. (See generally Mot.) Specifically, Garcia argues 18 that (1) Martin failed to comply with Rule 4(f) and the Hague Convention, which 19 together govern service on a defendant in a foreign country; and (2) even if the Hague 20 Convention does not apply, Martin’s substitute service was procedurally defective. 21 (See Mot. 3–6.) The Court addresses each argument in turn. 22 A. Hague Convention 23 First, Garcia argues that, because she is a resident and citizen of Mexico, 24 service is governed by Rule 4(f) and the provisions of the Hague Convention. 25 (Mot. 3–6; Decl. of Rahel Garcia (“Garcia Decl.”) ¶ 2, ECF No. 82-1.) In opposition, 26 Martin claims Garcia is actually a dual citizen of the United States and Mexico, and 27 that she is proclaiming her Mexican citizenship as a way to “shield” herself against 28 service. (Opp’n 15–16.) The Court notes that Garcia artfully avoids clarifying her 1 United States citizenship in her declaration. (See generally Garcia Decl. (failing to 2 state whether Garcia is a citizen of the United States, as alleged by Martin).) 3 Here, both parties miss the mark. “The plain language of Rule 4(f) indicates 4 that application of the rule is not triggered by the citizenship of the individual being 5 served but rather the place in which service is effected.” Stars’ Desert Inn Hotel & 6 Country Club, Inc. v. Hwang, 105 F.3d 521, 524 (9th Cir. 1997). Martin claims to 7 have effected service on Garcia in California, not Mexico. (Opp’n 6–7; Proof of 8 Service.) Rule 4(f) and the Hague Convention, then, are not at issue. See Stars’ 9 Desert Inn Hotel & Country Club, 105 F.3d at 524; see also Agricola ABC, S.A. de 10 C.V. v. Chiquita Fresh N. Am., LLC, No. 10 CV 0772-IEG (NLSx), 2010 WL 11 2985500, at *4 (S.D. Cal. July 28, 2010) (“The fact defendants are citizens of Mexico 12 does not, in and of itself, require Plaintiff to comply with [Rule 4(f)] governing 13 service on individuals in a Foreign Country.”). Therefore, the Court finds Garcia’s 14 argument that Martin failed to comply with Rule 4(f) unpersuasive. 15 B. Substitute Service 16 Second, Garcia contends that even if Rule 4(f) does not apply, Martin’s 17 substitute service was procedurally defective and insufficient to confer personal 18 jurisdiction over her. (Mot. 5–6.) Martin responds that she properly served Garcia 19 through substitute service pursuant to California law. (Opp’n 9–13.) Here, the Court 20 agrees with Garcia. 21 Under Rule 4(e)(1), an individual may be served by “following state law for 22 serving a summons in an action brought in courts of general jurisdiction in the state 23 where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1). 24 In this case, Martin elected to follow California’s substitute service law. (See Proof of 25 Service; Opp’n 9–13.) That law permits substitute service on a defendant if the 26 plaintiff, acting with reasonable diligence, cannot complete personal service. See Cal. 27 Civ. Proc. Code § 415.20(b); see also Bein v. Brechtel-Jochim Grp., Inc., 6 Cal. App. 28 4th 1387, 1391–92 (1992) (“Ordinarily, . . . two or three attempts at personal service 1 at a proper place should fully satisfy the requirement of reasonable diligence and 2 allow substituted service to be made.”). To effect substitute service, the plaintiff must 3 leave a copy of the summons and complaint “at the person’s dwelling house, usual 4 place of abode, usual place of business, or usual mailing address other than a United 5 States Postal Service post office box.” Cal. Civ. Proc. Code § 415.20(b). 6 For service to be proper, however, “[i]t is crucial that a connection be shown 7 between the address at which substitute service is effectuated and the party alleged to 8 be served.” Corcoran v. Arouh, 24 Cal. App. 4th 310, 315 (1994). “A person can 9 have more than one dwelling house or usual place of abode” for the purposes of Rule 10 4(e). Stars’ Desert Inn Hotel & Country Club, 105 F.3d at 527. But there must be 11 “sufficient indicia of permanence”—i.e., that the property it is not a temporary 12 residence, for it to be considered the defendant’s dwelling house or usual place of 13 abode. See, e.g., Asmodus, Inc. v. Junbiao Ou, No. EDCV 16-2511 JGB (DTBx), 14 2017 WL 5592914, at *8 (C.D. Cal. Feb. 3, 2017) (finding that a defendant’s 15 investment property qualified as his dwelling house or usual place of abode where 16 there was evidence that he resided there sporadically throughout the year). 17 Here, Martin and her counsel used online databases and information they 18 obtained from the United States Post Office to identify several properties in Florida 19 and California with possible connections to Garcia. (See Opp’n 4–6; Decl. of 20 Deborah S. Mallgrave ¶¶ 2–12, ECF No. 84-1.) Nevertheless, Martin was unable to 21 effect service on Garcia at any of those locations. (Opp’n 4–6.) Undeterred, Martin 22 claims she then “attempted service on the home that she knew from personal 23 experience to be Garcia’s additional residence.” (Id. at 6.) Martin provided her 24 counsel with a photo of the house, and by cross-referencing that photo with an online 25 database, they “estimated the property to be at 120 North Arizona Avenue, Los 26 Angeles, California.” (Id.) The process server later confirmed that the house in the 27 photo was actually located at 118 North Arizona Avenue in Los Angeles, California. 28 (Id.; Decl. of Luis Verjan (“Verjan Decl.”) ¶ 2.) The process server tried to serve 1 Garcia twice at 118 North Arizona Avenue, and on the third try at the same location, 2 the process server left the Complaint and Summons with a “John Doe” in an attempt 3 to effect substitute service. (Opp’n 6–7; Verjan Decl. ¶¶ 5–6; Proof of Service.) 4 Although Martin claims “she knew from personal experience” that 118 North 5 Arizona Avenue was Garcia’s residence, she has not presented any evidence that 6 Garcia resided at that property. And as noted above, for substitute service at a 7 defendant’s purported residence to be effective, the Summons and Complaint must be 8 left at the defendant’s dwelling house or usual place of abode. Cal. Civ. Proc. Code 9 § 415.20(b). 10 In fact, the evidence Garcia submits in support of her Motion shows that she did 11 not reside at the 118 North Arizona Avenue property at the time of service. (See 12 Mot. 5 (citing Decl. of Oracio De La Paz (“De La Paz Decl.”)).) Garcia submits 13 declaration testimony from Oracio De La Paz, who claims he is the “John Doe” who 14 accepted delivery of the Summons and Complaint. (See De La Paz Decl. ¶¶ 2–5.) 15 De La Paz explains that, initially, he refused to accept the Summons and Complaint, 16 and informed the process server that he had the wrong address. (Id.) He also states 17 that he told the process server that “there was no person by [the name Rahel Garcia] 18 living or working at the property.” (Id. ¶ 3.) De La Paz asserts that he only accepted 19 the Summons and Complaint after the process server showed him a badge and insisted 20 that he take the papers. (Id. ¶ 4 (explaining that De La Paz believed the process server 21 was a police officer).) Based on the foregoing, there is no evidence that the 118 North 22 Arizona Avenue property qualifies as Garcia’s dwelling place or usual place of abode, 23 and as such, Martin fails to meet her burden to prove she effected substitute service on 24 Garcia. See Brockmeyer, 383 F.3d at 801. 25 Accordingly, the Court must decide whether to dismiss Garcia, or to quash 26 service. See C&sm, 2019 WL 7882077, at *1. “Typically, if a reasonable prospect 27 exists that the plaintiff may ultimately be able to serve the defendant properly, the 28 court will quash the service.” Telebrands Corp. v. GMC Ware, Inc., No. CV 15- 1 | 03121 SJO (JCx), 2016 WL 6237914, at *2 (C.D. Cal. Apr. 5, 2016). Martin insists 2 || that if she is provided additional time to serve Garcia, she would consider alternative 3 || means of service. (See Opp’n 13-14.) Therefore, the Court QUASHES the purported 4 || service on Garcia. 5 IV. CONCLUSION 6 Because there is a “reasonable prospect” that Martin can properly serve Garcia, 7 || the Court GRANTS the Motion and QUASHES the service on Garcia.” The Court 8 || ORDERS Martin to effect service on Garcia in accordance with Rule 4 within 9 || twenty-one (21) days of the issuance of this order. If Martin fails to file proof of valid 10 || service upon Garcia within twenty-one (21) days, the Court shall dismiss the claims 11 || against Garcia without further warning, based on Martin’s failure to serve her within 12 || the time required by Rule 4(m). 13 14 IT IS SO ORDERED. 15 16 February 3, 2021 ~ . 17 a. Ba,
19 OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE
21 22 23 24 25 26 27 28 || 7 In light of this determination, the Court need not address Garcia’s other challenges to jurisdiction at this time, and declines to do so.