UNITEDHEALTH GROUP Case No.: 24-CV-2130 JLS (DTF) INCORPORATED, a Delaware corporation, ORDER GRANTING PLAINTIFF’S EX PARTE RENEWED MOTION Plaintiff, FOR LEAVE TO SERVE v. DEFENDANTS VIA ALTERNATIVE ELAINE SELAN, an individual; UNITEDHEALTH GROUP (ECF No. 11) INCORPORATED, a California nonprofit corporation; and DOES 1-10, inclusive, Defendants. Presently before the Court are Plaintiff UnitedHealth Group Incorporated’s Ex Parte Motion for Leave to Serve Defendants via Alternative Means (“Mot.,” ECF No. 11) and Memorandum and Points of Authorities in Support thereof (“Mem.,” ECF No. 11-1). Plaintiff seeks the Court’s permission to accomplish service by publication as it has not been able to successfully serve Defendants Elaine Selan and UnitedHealth Group Incorporated of California (“Defendant UHG”) (collectively, “Defendants”). Defendants have not filed an objection to the Motion. Having considered Plaintiff’s Motion, the evidence, and the law, the Court GRANTS Plaintiff’s Motion. / / / Plaintiff UnitedHealth Group Incorporated alleges that Defendant Elaine Selan registered a nonprofit mutual benefit corporation, which she called UnitedHealth Group Incorporated of California, using Plaintiff’s trade name and mark. See ECF No. 1 (“Compl.”) ¶ 5. This “unauthorized corporate registration,” Plaintiff alleges, “has already resulted in actual confusion.”1 Id. ¶ 4. Plaintiff filed suit against Defendants on November 13, 2024, seeking injunctive relief and treble damages under the Lanham Act, amongst other remedies. Id. at Prayer for Relief. On February 11, 2025, Plaintiff’s counsel Kenneth L. Wilton filed a declaration outlining Plaintiff’s mired efforts to serve Defendants. See ECF No. 7. Yet Plaintiff did not formally request any relief, so on May 5, 2025, the Court ordered Plaintiff to show cause why the action should not be dismissed for failure to timely effect service. See ECF No. 8. Plaintiff then timely filed its first Motion to serve Defendants by publication on June 4, 2025, ECF No. 9, but the Court denied the request on several grounds, see ECF No. 10 (“Order”). Despite concluding that Plaintiff had exercised reasonable diligence in serving Selan, the Court found that Plaintiff’s service attempts on Defendant UHG had not “been as numerous or varied,” thus falling short of the “reasonable diligence” standard. Id. at 5. But even if Plaintiff had exercised reasonable diligence in serving Defendant UHG, the Court continued, Plaintiff’s global request with respect to both Defendants was additionally flawed because Plaintiff had not demonstrated that a cause of action exists against Defendants as is required by California Civil Procedure Code Section 415.50(a)(1). Id. at 6. The Court, consequently, denied the Motion without prejudice to Plaintiff renewing its request within forty-five days. Id. at 7. The instant Motion reflects Plaintiff’s renewed request. This time, Plaintiff has met its burden to proceed with service by publication. 1 As evidence of said confusion, Plaintiff alleges that Selan was served as Plaintiff’s registered agent of Federal Rule of Civil Procedure 4(e)(1) provides that an individual may be served by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Additionally, Federal Rule of Civil Procedure 4(h)(1)(A) provides that a corporation may be served “in the manner prescribed by Rule 4(e)(1) for serving an individual.” California law, in turn, provides that “[a] summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article.” Cal. Civ. Proc. Code § 415.50(a). To determine whether a plaintiff has exercised “reasonable diligence,” courts assess whether the plaintiff “took those steps a reasonable person who truly desired to give notice would have taken under the circumstances.” Donel, Inc. v. Badalian, 150 Cal. Rptr. 855, 859 (Ct. App. 1978). Because of due process concerns, however, service by publication is only allowed “as a last resort.” Id. at 858. “Before allowing a plaintiff to resort to service by publication, the courts necessarily require him to show exhaustive attempts to locate the defendant, for it is generally recognized that service by publication rarely results in actual notice.” Watts v. Crawford, 896 P.2d 807, 811 n.5 (Cal. 1995) (citation and internal quotation marks omitted). Accordingly, “[t]he term ‘reasonable diligence’ . . . denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney.” Id. (citations omitted). However, “[a] number of honest attempts to learn defendant’s whereabouts or his address by inquiry of relatives, . . . and by investigation of appropriate city and telephone directories, voter registries, and assessor’s office property indices situated near the defendant’s last known location, generally are sufficient.” Id. (citations omitted). Moreover, a party requesting service by publication must show that a “cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.” Cal. Civ. Proc. Code § 415.50(a)(1). Such a showing must be made by “independent evidentiary support, in the form of a sworn statement of facts.” Cummings v. Brantley Hale, No. 15-cv-04723-JCS, 2016 WL 4762208, at *2 (N.D. Cal. Sept. 13, 2016) (quoting McNamara v. Sher, No. 11-CV-1344-BEN WVG, 2012 WL 760531, at *4 (S.D. Cal. Mar. 8, 2012)). Having once before rejected Plaintiff’s request, the Court is now assured that Plaintiff has satisfied Section 415.50(a) of the California Civil Procedure Code, thus unlocking service by publication as an available option for serving process on Defendants. While the Court previously found that Plaintiff had exercised reasonable diligence in serving Selan, it now finds that Plaintiff has exercised reasonable diligence in serving both Defendants. And whereas the Court previously found Plaintiff’s evidentiary support regarding the existence of a cause of action fatally lacking, Plaintiff has rectified that oversight in its Renewed Motion. Plaintiff’s efforts to serve Selan are detailed in the Court’s prior Order denying Plaintiff’s first request to serve by publication and need not be repeated here. See Order at 2. It suffices to say that the Court’s prior conclusion that Plaintiff had exercised reasonable diligence to serve Selan remains valid in light of the extensive efforts taken by Plaintiff to locate all possible known addresses where Selan could potentially be found. See id. at 5. As for Defendant UHG, the Court is likewise now persuaded that Plaintiff has exercised reasonable diligence to effect service. Previously, the Court noted that Plaintiff had “tried to serve Defendant UHG only twice,” both times sending a process server to the principal address listed on Defendant UHG’s Articles of Incorporation in Sheridan, Wyoming. See id. at 5–6. Although that “address turned out not to be the registered agent of service for Defendant UHG,” the Court determined that neither of the two attempts “seem[ed] likely to truly give notice to Defendant UHG,” id. at 6, so Plaintiff was ordered to make further service attempts or to offer a more detailed justification for why further attempts would be futile
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UNITEDHEALTH GROUP Case No.: 24-CV-2130 JLS (DTF) INCORPORATED, a Delaware corporation, ORDER GRANTING PLAINTIFF’S EX PARTE RENEWED MOTION Plaintiff, FOR LEAVE TO SERVE v. DEFENDANTS VIA ALTERNATIVE ELAINE SELAN, an individual; UNITEDHEALTH GROUP (ECF No. 11) INCORPORATED, a California nonprofit corporation; and DOES 1-10, inclusive, Defendants. Presently before the Court are Plaintiff UnitedHealth Group Incorporated’s Ex Parte Motion for Leave to Serve Defendants via Alternative Means (“Mot.,” ECF No. 11) and Memorandum and Points of Authorities in Support thereof (“Mem.,” ECF No. 11-1). Plaintiff seeks the Court’s permission to accomplish service by publication as it has not been able to successfully serve Defendants Elaine Selan and UnitedHealth Group Incorporated of California (“Defendant UHG”) (collectively, “Defendants”). Defendants have not filed an objection to the Motion. Having considered Plaintiff’s Motion, the evidence, and the law, the Court GRANTS Plaintiff’s Motion. / / / Plaintiff UnitedHealth Group Incorporated alleges that Defendant Elaine Selan registered a nonprofit mutual benefit corporation, which she called UnitedHealth Group Incorporated of California, using Plaintiff’s trade name and mark. See ECF No. 1 (“Compl.”) ¶ 5. This “unauthorized corporate registration,” Plaintiff alleges, “has already resulted in actual confusion.”1 Id. ¶ 4. Plaintiff filed suit against Defendants on November 13, 2024, seeking injunctive relief and treble damages under the Lanham Act, amongst other remedies. Id. at Prayer for Relief. On February 11, 2025, Plaintiff’s counsel Kenneth L. Wilton filed a declaration outlining Plaintiff’s mired efforts to serve Defendants. See ECF No. 7. Yet Plaintiff did not formally request any relief, so on May 5, 2025, the Court ordered Plaintiff to show cause why the action should not be dismissed for failure to timely effect service. See ECF No. 8. Plaintiff then timely filed its first Motion to serve Defendants by publication on June 4, 2025, ECF No. 9, but the Court denied the request on several grounds, see ECF No. 10 (“Order”). Despite concluding that Plaintiff had exercised reasonable diligence in serving Selan, the Court found that Plaintiff’s service attempts on Defendant UHG had not “been as numerous or varied,” thus falling short of the “reasonable diligence” standard. Id. at 5. But even if Plaintiff had exercised reasonable diligence in serving Defendant UHG, the Court continued, Plaintiff’s global request with respect to both Defendants was additionally flawed because Plaintiff had not demonstrated that a cause of action exists against Defendants as is required by California Civil Procedure Code Section 415.50(a)(1). Id. at 6. The Court, consequently, denied the Motion without prejudice to Plaintiff renewing its request within forty-five days. Id. at 7. The instant Motion reflects Plaintiff’s renewed request. This time, Plaintiff has met its burden to proceed with service by publication. 1 As evidence of said confusion, Plaintiff alleges that Selan was served as Plaintiff’s registered agent of Federal Rule of Civil Procedure 4(e)(1) provides that an individual may be served by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Additionally, Federal Rule of Civil Procedure 4(h)(1)(A) provides that a corporation may be served “in the manner prescribed by Rule 4(e)(1) for serving an individual.” California law, in turn, provides that “[a] summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article.” Cal. Civ. Proc. Code § 415.50(a). To determine whether a plaintiff has exercised “reasonable diligence,” courts assess whether the plaintiff “took those steps a reasonable person who truly desired to give notice would have taken under the circumstances.” Donel, Inc. v. Badalian, 150 Cal. Rptr. 855, 859 (Ct. App. 1978). Because of due process concerns, however, service by publication is only allowed “as a last resort.” Id. at 858. “Before allowing a plaintiff to resort to service by publication, the courts necessarily require him to show exhaustive attempts to locate the defendant, for it is generally recognized that service by publication rarely results in actual notice.” Watts v. Crawford, 896 P.2d 807, 811 n.5 (Cal. 1995) (citation and internal quotation marks omitted). Accordingly, “[t]he term ‘reasonable diligence’ . . . denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney.” Id. (citations omitted). However, “[a] number of honest attempts to learn defendant’s whereabouts or his address by inquiry of relatives, . . . and by investigation of appropriate city and telephone directories, voter registries, and assessor’s office property indices situated near the defendant’s last known location, generally are sufficient.” Id. (citations omitted). Moreover, a party requesting service by publication must show that a “cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.” Cal. Civ. Proc. Code § 415.50(a)(1). Such a showing must be made by “independent evidentiary support, in the form of a sworn statement of facts.” Cummings v. Brantley Hale, No. 15-cv-04723-JCS, 2016 WL 4762208, at *2 (N.D. Cal. Sept. 13, 2016) (quoting McNamara v. Sher, No. 11-CV-1344-BEN WVG, 2012 WL 760531, at *4 (S.D. Cal. Mar. 8, 2012)). Having once before rejected Plaintiff’s request, the Court is now assured that Plaintiff has satisfied Section 415.50(a) of the California Civil Procedure Code, thus unlocking service by publication as an available option for serving process on Defendants. While the Court previously found that Plaintiff had exercised reasonable diligence in serving Selan, it now finds that Plaintiff has exercised reasonable diligence in serving both Defendants. And whereas the Court previously found Plaintiff’s evidentiary support regarding the existence of a cause of action fatally lacking, Plaintiff has rectified that oversight in its Renewed Motion. Plaintiff’s efforts to serve Selan are detailed in the Court’s prior Order denying Plaintiff’s first request to serve by publication and need not be repeated here. See Order at 2. It suffices to say that the Court’s prior conclusion that Plaintiff had exercised reasonable diligence to serve Selan remains valid in light of the extensive efforts taken by Plaintiff to locate all possible known addresses where Selan could potentially be found. See id. at 5. As for Defendant UHG, the Court is likewise now persuaded that Plaintiff has exercised reasonable diligence to effect service. Previously, the Court noted that Plaintiff had “tried to serve Defendant UHG only twice,” both times sending a process server to the principal address listed on Defendant UHG’s Articles of Incorporation in Sheridan, Wyoming. See id. at 5–6. Although that “address turned out not to be the registered agent of service for Defendant UHG,” the Court determined that neither of the two attempts “seem[ed] likely to truly give notice to Defendant UHG,” id. at 6, so Plaintiff was ordered to make further service attempts or to offer a more detailed justification for why further attempts would be futile. Plaintiff has now adequately done so. In a declaration filed by Plaintiff’s counsel alongside the Renewed Motion, Plaintiff adds context to its service attempts on Defendant UHG, asserting that the principal address listed on Defendant UHG’s Articles of Incorporation was “used by many individuals seeking to defraud the public in different ways,” thus frustrating plaintiffs’ efforts to serve process on those individuals. Second Declaration of Kenneth L. Wilton (“Wilton Decl.”) ¶ 10, ECF No. 11-2. Supporting this assertion are multiple articles in the Sheridan Press— a news periodical located in Sheridan, Wyoming—narrating how the principal address operates as “a front” for thousands of sham businesses. Id. ¶ 9 (citing ECF No. 11-3 at 6-15). Plaintiff’s counsel then clarifies that, even after the two service attempts at the fraudulent Sheridan, Wyoming address, he directed a process server to make an additional attempt at the San Ysidro, California PostalAnnex box registered to Selan, though that attempt was also unsuccessful. Id. ¶ 21. This final attempt, Plaintiff argues, can be credited as a service attempt on Selan both in her individual capacity and simultaneously in her capacity as a registered agent for Defendant UHG. Mem. at 5–6 (first citing Pierce v. Jardine Constr. Co., No. 23-cv-9183-MWF, 2024 WL 1680095, at *2 (C.D. Cal. Mar. 4, 2024); and then citing GS Holistic, LLC v. Bubbles Smoke Shop, No. 23-cv-3391-MWF, 2023 WL 6787773, at *2 (C.D. Cal. Sept. 5, 2023)). In light of this newly presented evidence and argument, the Court now agrees that Plaintiff has exercised reasonable diligence with respect to Defendant UHG. Finally, whereas Plaintiff had previously failed to provide independent evidentiary support from a witness with personal knowledge attesting to the existence of a cause of action, such error has been remedied. Attached to its Renewed Motion is a sworn declaration by Linhda Nguyen, Deputy General Counsel for UnitedHealth Group Incorporated. See Declaration of Linhda Nguyen (“Nguyen Decl.”), ECF No. 11-4. Nguyen, in her declaration, states on personal knowledge that Plaintiff has continuously used its trademarks and trade name in interstate commerce for several decades in connection with certain healthcare services, id. ¶ 5, but that Defendants’ use of identical marks and an identical name have already resulted in at least two instances of actual confusion, id. §{] 14-15. In both instances, according to Nguyen, a third-party plaintiff in unrelated lawsuits confused Plaintiff with Defendant UHG and mistakenly served process Selan under the false impression that Selan was Plaintiff's registered agent. See id. 16-17. Nguyen’s declaration persuasively demonstrates that a cause of action exists against Defendants. See Herb Reed Enters., LLC v. Fla. Ent. Mgmt., Inc., 736 F.3d 1239, 1247 (9th Cir. 2013) (articulating the elements of a trademark infringement claim). Satisfied that Plaintiff is entitled to proceed via service by publication, the Court GRANTS Plaintiff's Renewed Motion for Leave to Serve Defendants via Alternative Means (“ECF No. 11). Given Defendants’ ostensible connection with San Diego County by virtue of Selan’s previously rented box at a San Ysidro PostalAnnex, the Court endorses Plaintiff's proposal of service by publication in the San Diego Union-Tribune. Accordingly, the Court ORDERS Plaintiff to serve Defendants by publication by publishing a copy of the Complaint (ECF No. 1) and Summons (ECF No. 5) in the San Diego Union-Tribune in accordance with the procedures prescribed by California Government Code Section 6064. Plaintiff SHALL commence the publication process within twenty-one (21) days of the date on which this Order is electronically docketed, and Plaintiff SHALL file proof of service within fourteen (14) days of completion of that process. Failure to serve Defendants by publication within the timeline allotted above result in the dismissal of this action, without prejudice, pursuant to Federal Rule of Procedure 41(b). See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890-91 (9th Cir. 2019) (explaining that courts may dismiss an action under Rule 41(b) for failure to comply with a court order). llDated: August 26, 2025 jae LL. Li moma on. Janis L. Sammartino United States District Judge