Sunset Licensing LLC v. Azuga, Inc.

• Court: District Court, N.D. California
• Decided: June 15, 2020
• Docket: 5:20-cv-02174
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 SUNSET LICENSING LLC, 8 Case No. 5:20-cv-02174-EJD Plaintiff, 9 ORDER GRANTING IN PART AND v. DENYING IN PART PLAINTIFF'S 10 APPLICATION FOR ALTERNATE AZUGA, INC., SERVICE OF PROCESS AND 11 EXTENSION OF TIME FOR SERVICE Defendant. OF PROCESS 12 Re: Dkt. No. 9 13 Before the Court is Plaintiff Sunset Licensing LLC’s Application for Alternative Service 14 of Process and Extension of Time for Service of Process and Continuance of Other Deadlines. 15 Dkt. No. 9. Plaintiff states that it has not been able to effectuate service upon Defendant Azuga, 16 Inc. since it filed the complaint on March 31, 2020, and requests an additional thirty days for 17 service to be completed. Plaintiff further requests that the Court permit alternate service of 18 process, specifically, service by posting a copy of the summons and complaint to the front door or 19 main entrance of the address it has identified as the Defendant’s address. 20 Rule 4 of the Federal Rules of Civil Procedure requires that service be completed by (1) 21 “delivering a copy of the summons and of the complaint to the individual personally;” (2) “leaving 22 a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age 23 and discretion who resides there;” or (3) “delivering a copy of each to an agent authorized by 24 appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e); Fed. R. Civ. P. 4(h) 25 (providing that a corporation may be served “in the manner prescribed by Rule 4(e)(1) for serving 26 27 Case No.: 5:20-cv-02174-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S APPLICATION FOR 1 an individual” or by delivering a copy of the summons and of the complaint to the agent 2 designated to receive service). In addition, service may be satisfied by “following state law . . . in 3 the state where the district court is located or where service is made[.]” Id. at (e)(1). California 4 state law similarly provides that “[i]f a copy of the summons and complaint cannot with 5 reasonable diligence be personally delivered to the person to be served, . . . a summons may be 6 served by leaving a copy of the summons and complaint at the person's dwelling house . . . in the 7 presence of a competent member of the household . . . at least 18 years of age, who shall be 8 informed of the contents thereof, and by thereafter mailing a copy of the summons and of the 9 complaint by first-class mail, postage prepaid to the person to be served at the place where a copy 10 of the summons and complaint were left.” Cal. Civ. Proc. Code §§ 415.20, 416.10. 11 Plaintiff does not cite any law in California or otherwise that contemplates posting the 12 summons and complaint to the front door of a residence, as Plaintiff requests, and the Court is not 13 aware of any such law. See Sameer v. Khera, No. 117-CV-01748-DAD-EPG, 2018 WL 2047167, 14 at *1 (E.D. Cal. May 2, 2018) (confirming that under California rules of service, the summons and 15 complaint must be left with a suitable person as described in Section 415.20). Moreover, while 16 Plaintiff notes that it made “several unsuccessful attempts at personal service,” Plaintiff does not 17 appear to have attempted any other method of service provided under Federal or California law. 18 Thus, the Court finds Plaintiff’s request for alternate service premature. 19 To the extent Plaintiff requests service “by publication,” as the caption to his filing 20 suggests, such service is not proper in this case. California Civil Procedure Code Section 415.50 21 provides that “[a] summons may be served by publication if upon affidavit it appears to the 22 satisfaction of the court in which the action is pending that the party to be served cannot with 23 reasonable diligence be served in another manner specified.” Cal. Civ. Proc. Code § 415.50(1)(1). 24 In addition to the reasonable diligence requirement, a plaintiff requesting service by publication 25 must submit an affidavit and “demonstrate that exhaustive attempts have been taken to serve the 26 defendant by another manner.” Sameer, 2018 WL 2047167, at *1 (citing Watts v. Crawford, 10 27 Case No.: 5:20-cv-02174-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S APPLICATION FOR 1 Cal. 4th 743, 749 n.5 (1995)). Plaintiff has not submitted an affidavit nor detailed its attempts at 2 service in a manner sufficient to show reasonable diligence. 3 Although the Plaintiff has not demonstrated good cause for alternate service, the Court 4 || finds that an extension of the time to complete service is appropriate. Rule 4(m) of the Federal 5 Rules of Civil Procedure requires an extension of time to complete service if the plaintiff shows 6 || “good cause” for failing to effect timely service. “‘[C]ourts have broad discretion to extend time 7 for service under Rule 4(m),’ even absent a showing of good cause for the delay.” Pine v. City of 8 || Oakland, No. 19-CV-02136-AGT, 2020 WL 2512404, at *5 (N.D. Cal. May 16, 2020) (citing 9 || Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007)). Given the added challenges to personal 10 service caused by the COVID-19 pandemic and related shelter-in-place orders, the Court will 11 grant an extension of thirty days from the date of this order for Plaintiff to complete service of 12 || process pursuant to Rule 4(m). 13 For the reasons stated, the Court DENIES Plaintiff's application for alternative service and 14 || GRANTS Plaintiffs request for an extension of time under Rule 4(m). Proof of service shall be 3 15 filed no later than July 15, 2020. a 16 The Case Management Conference currently scheduled for July 2, 2020 is hereby reset for 3 17 || August 27, 2020 at 10:00 a.m. The parties’ joint statement is due August 17, 2020. IT IS SO ORDERED. 19 Dated: June 15, 2020 20 EDWARD J. DAVILA 21 United States District Judge 22 23 24 25 26 27 Case No.: 5:20-cv-02174-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S APPLICATION FOR 28 oROeRoS □□ SERVICE OF PROCESS AND EXTENSION OF TIME FOR SERVICE OF