Kobe Falco v. Nissan North America Inc et al, No. 2:2013cv00686 - Document 64 (C.D. Cal. 2013)
Court Description: ORDER DENYING 42 DEFENDANTS MOTION TO DISMISS UNDER RULES 12(B)(5) AND (4)(c) by Judge Dean D. Pregerson . (lc). Modified on 12/12/2013 (lc).
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Kobe Falco v. Nissan North America Inc et al Doc. 64 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 KOBE FALCO, individually, and on behalf of a class similarly situated individuals, 13 Plaintiff, 14 v. 15 16 NISSAN NORTH AMERICA INC., NISSAN MOTOR CO.LTD, a Japanese Company, 17 18 Defendants. ___________________________ 19 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-00686 DDP (MANx) ORDER DENYING DEFENDANT’S MOTION TO DISMISS UNDER RULES 12(B)(5) AND (4)(c) [DKT No. 42] Presently before the court is Defendant Nissan Motor Co., 20 Ltd’s (“Nissan-Japan”) Motion to Dismiss Plaintiff’s First Amended 21 Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(5) and 22 4(c). Having considered the parties’ submissions and heard oral 23 argument, the court now adopts the following order. 24 25 26 I. Background This case involves a putative class action lawsuit brought by 27 consumers of certain Nissan automobiles against Nissan-Japan and 28 Nissan North America (“Nissan-America”). Nissan-Japan asserts in Dockets.Justia.com 1 the instant motion that Plaintiffs have failed to effectively serve 2 Nissan-Japan. 3 This court previously granted a motion by Nissan-Japan to 4 dismiss for inadequate service of process. (See DKT No. 52.) That 5 order was granted on the grounds that, in an attempt made on June 6 27, 2013 to serve Nissan-Japan (purportedly via substitute service 7 on an executive of Nissan-Japan’s subsidiary, Nissan-America), 8 Plaintiffs failed to serve a summons along with their First Amended 9 Complaint, as required by Fed. R. Civ. P. 4(c)(1). 10 Plaintiffs made a subsequent attempt to serve Nissan-Japan, 11 again via its subsidiary Nissan-America, on August 8, 2013, this 12 time including a summons. (DKT No. 35.) The proof of service 13 submitted to the court stated that the following person was served: 14 a. Defendant (name): Colin Dodge, Chairman, Management 15 Committee-Americas, Executive Vice President, and Chief 16 Performance Officer, Nissan North America, Inc, which is 17 general manager of Nissan Jid’osha Kabushiki Kaisha d/b/a 18 Nissan Motor, Co., and 19 b. 20 on Behalf of Colin Dodge, Chairman.” 21 22 Other: Larry Okuneff, Claims Manager Apparently in Charge (Id. ¶¶ 2(a) and 2(b).) The proof of service indicates that the service was 23 accomplished via substitute service, by (1) leaving copies with a 24 person apparently in charge of the office of the place of business 25 of the person to be served and (2) by mailing a copy addressed to 26 Colin Dodge (with the same description as quoted above). (Id. ¶ 27 4(b)(2)-(5).) The proof of service leaves unchecked a box with the 28 2 1 text: “due diligence: I made at least (3) attempts to personally 2 serve the defendant.”) (Id. ¶ 4(b)(6)). 3 In support of its motion to dismiss, Nissan-Japan submitted a 4 declaration by Larry Okuneff, the Nissan-America claims manager who 5 received Plaintiffs’ papers. Okuneff stated in the declaration that 6 he is not authorized to accept service of process for Colin Dodge 7 or Nissan-Japan. (Declaration of Larry Okuneff in Support of Motion 8 ¶ 4.) Okuneff also stated that, upon briefly reviewing the papers 9 handed to him by a process server, Okuneff told the process server 10 that he would “only accept the papers on behalf of [Nissan-America] 11 and ask him to write on the papers that I was only accepting the 12 papers for [Nissan-America].” (Id. ¶ 5.) Accordingly, according to 13 Okuneff, the process server wrote “For Nissan North America Only” 14 on the summons. (Id. Ex. I.) 15 16 17 II. Legal Standard “[S]ervice of summons is the procedure by which a court having 18 venue and jurisdiction of the subject matter of the suit asserts 19 jurisdiction over the person of the party served.” Mississippi 20 Publishing Corp. v. Murphree, 326 U.S. 438, 444–445, 66 S.Ct. 242, 21 245–246, 90 L.Ed. 185 (1946). “Before a federal court may exercise 22 personal jurisdiction over a defendant, the procedural requirement 23 of service of summons must be satisfied.” Omni Capital Int'l, Ltd. 24 v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). Accordingly, 25 Federal Rule of Civil Procedure 12(b)(5) provides that insufficient 26 service may be a basis for dismissal of a complaint. Once service 27 is challenge, the plaintiff bears the burden of establishing that 28 3 1 service was valid. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2 2004). 3 Requirements for the contents and manner of service are 4 established by Rule 4. Under Rule 4(h)(1), a corporation, whether 5 foreign or domestic, must be served in a judicial district of the 6 United States either: “(A) in the manner prescribed by Rule 4(e)(1) 7 for serving an individual; or (B) by delivering a copy of the 8 summons and of the complaint to an officer, a managing or general 9 agent, or any other agent authorized by appointment or by law to 10 receive service of process.” Rule 4(e)(1), in turn, provides, inter 11 alia, that process may be served in accordance with “state law for 12 serving a summons in an action brought in courts of general 13 jurisdiction in the state where the district court is located or 14 where service is made.” The applicable state law is described in 15 the following section. 16 17 III. Discussion 18 A. 19 Service on Nissan-America as a General Manager of Nissan-Japan California law provides that service of process may be 20 effected on a corporation by, among other means, delivering a copy 21 of the summons and the complaint to “a general manager” of the 22 corporation. Cal. Code of Civ. Proc. § 416.10(b). California courts 23 have interpreted “general manager” to “include[] any agent of the 24 corporation ‘of sufficient character and rank to make it reasonably 25 certain that the defendant will be apprised of the service made.’” 26 Gibble v. Car-Lene Research, Inc., 67 Cal.App.4th 295, 313 (1998), 27 quoting Eclipse Fuel Engineering Co. v. Superior Court, 148 28 Cal.App.2d 736, 745-46 (1957). Plaintiffs assert that Nissan4 1 America qualifies as a “general manager” of Nissan-Japan within the 2 meaning of § 416.10(b) and, therefore, its service on Nissan-Japan 3 via Nissan-America was proper. (Opp at 5-10.) 4 Nissan-Japan challenges Plaintiffs’ service as inadequate on 5 several grounds. First, Nissan-Japan asserts that service was 6 ineffective on the ground that “[i]t has long been recognized in 7 California that service upon a subsidiary does not constitute 8 service upon a parent corporation.” (MTD at 7, citing Gravely Motor 9 Plow & Cultivator Co. v. H.V. Carter Co., Inc., 193 F.2d 158, 161 10 (9th Cir. 1951); Graval v. P.T. Bakrie & Bros., 986 F.Supp. 1326, 11 1330-31 (C.D. Cal. 1996)). While Nissan-Japan is correct that 12 service on a subsidiary corporation does not automatically effect 13 service on a parent corporation, this has no import for the present 14 case because Plaintiffs’ contention that service on Nissan-Japan 15 may be made upon Nissan-America is not premised on the parent- 16 subsidiary relationship between the two companies. 17 discussed above, Plaintiffs assert that Nissan-Japan may be served 18 via Nissan-America because Nissan-America is a “general manager” 19 under California law. 20 Rather, as Second, Nissan-Japan asserts that Nissan-America is not a 21 “general manager” of Nissan-Japan because Nissan-America “is not 22 [Nissan-Japan’s] designated general manager and does not have 23 management responsibilities or exercise control over [Nissan- 24 Japan].” (MTD at 8.)1 Nissan-Japan relies on Bakersfield Hacienda 25 1 26 27 28 It is unclear from Nissan-Japan’s moving papers and reply whether Nissan-Japan is arguing that Nissan-America is not a “general manager” of Nissan-Japan because (1) Nissan-America lacks sufficient control over Nissan-Japan or (2) Nissan-Japan lacks sufficient control over Nissan-America. On the one hand, Nissan(continued...) 5 1 Inc. V. Superior Court, 199 Cal. App. 2d 798 (1962). However, 2 Hacienda is inapposite. Hacienda considered whether service on the 3 general manager of an individual motel site constituted adequate 4 service of process on the corporation that owned the hotel. The 5 court held that it did not, explaining that “the general manager of 6 a motel is not the general manager of the corporation.” 199 7 Cal.App.2d at 803. The facts that were at issue in Hacienda were 8 remote from the circumstances here involving service on the 9 domestic subsidiary of a foreign parent corporation. 10 Three published decisions have addressed the meaning of 11 “general manager” for the purposes of California’s substitute 12 service statute where applied, as in the present case, to the 13 domestic subsidiary of a foreign automotive corporation for which 14 the subsidiary is the parent’s distributor in the country. See 15 Khachartryan v. Toyota Motor Sales, U.S.A, Inc., 578 F. Supp. 2d 16 1224 (C.D. Cal. 2008); Gray v. Mazda Motor of America, 560 F. Supp. 17 2d 928, 929-930 (C.D. Cal. 2008); Yamaha Motor Co., Ltd v. Superior 18 1 19 20 21 22 23 24 25 26 27 28 (...continued) Japan quotes a definition of “general manager” from Bakersfield Hacienda Inc. V. Superior Court, 199 Cal. App. 2d 798 (1962) a California court indicating that a general manager is “one who has general direction and control of the business of the corporation as distinguished from one who has the management only of a particular brand of the business.” (See MTD at 8, quoting Hacienda, Inc. V. Superior Court, 199 Cal.App.2d 798, 804 (1962)). This suggests that Nissan-Japan’s theory is that Nissan-America lacks sufficient control over its parent Nissan-Japan. On the other hand, however, Nissan-Japan immediately follows this definition by asserting a series of alleged facts suggesting a lack of control by NissanJapan over its subsidiary Nissan-America, including, for example, that Nissan-Japan does not have the right to exercise control over Nissan-America’s day to day-to-day operations or its distribution or sales in the United States. (See Opp. at 9.) The issue is beside the point, however, because control is not a focus of the inquiry California courts have developed for identifying “general managers” for the purpose of service of process in circumstances like those in the instant case. 6 1 Ct.,174 Cal.App.4th 264 (2009). These cases strongly support 2 Plaintiffs’ contention that Nissan-America is a “general manager” 3 of Nissan-America within the meaning of Cal. Code § 416.10(b). 4 Each of the three cases relies on language in the California 5 Supreme Court’s decision in Cosper v. Smith & Wesson Arms Co., 53 6 Cal. 2d 77, 84(1959). There, the Court held that service could be 7 effected on the out-of-state gun manufacturer Smith & Wesson via 8 its sales representative in California. The Court noted that the 9 sales representative would have “ample regular contact with Smith & 10 Wesson and would be of ‘sufficient character and rank to make it 11 reasonably certain’ that Smith & Wesson would be apprised of the 12 service of process” and that the sales representative gave Smith & 13 Wesson the opportunity for regular contact with customers in the 14 state. 15 Wesson with [the sales representative] appears ... to have given 16 Smith & Wesson substantially the business advantages that it would 17 have enjoyed ‘if it conducted its business through its own offices 18 or paid agents in the state’ (Eclipse Fuel Engineering Co. v. 19 Superior Court, supra, 148 Cal.App.2d 736, 740, 307 P.2d 739, 742); 20 and such arrangement was sufficient to constitute [the sales 21 representative] ‘the general manager in this State’ for purposes of 22 service of process on Smith & Wesson.” 53 Cal. 2d at 84. 23 Accordingly, it held: “In short, the arrangement of Smith & In Khachartryan v. Toyota Motor Sales, U.S.A, Inc., this court 24 found that Toyota Motor Sales, U.S.A. (“Toyota-America”) was a 25 “general manager” of Japan-based Toyota Motor Corporation (“Toyota- 26 Japan”) for purposes of service of process under California Code of 27 Civil Procedure section 416.10(b). Toyota-America was the 28 distributor of Toyota products for certain regions of the United 7 1 States and published marketing materials bearing Toyota-Japan’s 2 logo, trademarks, and trade name. 578 F. Supp. 2d at 1227. Citing 3 these facts, the court found that, because Toyota-Japan’s 4 relationship with Toyota-America gave the former “‘substantially 5 the business advantages that it would have enjoyed if it conducted 6 its business through its own offices or paid agents in the state,’ 7 that relationship was sufficient to render the California entity a 8 general manager for service of process.” Id., quoting Cosper, 53 9 Cal.2d at 84. 10 Likewise, in Gray v. Mazda Motor of America, this court found 11 that Mazda Motor of America, Inc (“Mazda-America”) was a “general 12 manager” of its Japanese parent company Mazda Motor Company 13 (“Mazda-Japan”) for purposes of service of process. Mazda-America 14 was “the distributor of Mazda motor vehicles in North America” and, 15 together with Mazda-Japan, warranted Mazda vehicles. 560 F. Supp. 16 2d at 931. Citing the same language from Cosper, the court found 17 that “Mazda-Japan's relationship with Mazda-America [gave] it 18 ‘substantially the business advantages that it would have enjoyed 19 if it conducted business’ in the state itself” and was therefore a 20 “general manager” for purposes of service of process. Id., citing 21 Cosper,53 Cal.2d at 84. 22 Finally, in Yamaha Motor Co., Ltd v. Superior Ct., a 23 California appeals court found that “Yamaha-America” served as a 24 “general manager” for its parent company “Yamaha-Japan” for the 25 purposes of service of process. In reaching this finding, the court 26 noted, among other facts, that “Yamaha-America” is the exclusive 27 importer and distributor of Yamaha vehicles in the U.S., that it 28 provides warranty and owner manuals for Yamaha vehicles, and that 8 1 it tests, markets, and receives complaints about the vehicles. 174 2 Cal.App.4th at 268. 3 Khachartryan, Gray, and Yamaha Motor Co. are controlling for 4 case at bar. As in all three cases, Nissan-America is a wholly- 5 owned domestic subsidiary of its Japanese parent corporation, 6 Nissan-Japan, for which it serves as the sole and exclusive 7 distributor of Nissan vehicles in the United States. (See 8 Declaration of Shiho Kobayashi in Support of Motion to Dismiss 9 Under Rule 12(b)(6) ¶ 17 (“[Nissan-America“Nissan Japan and 10 [Nissan-America] have entered into an agreement that appoints 11 [Nissan-America] as the sole authorized distributor of Nissan and 12 Infiniti vehicles in the United States, including California.”; ¶ 13 18 (“[Nissan-America] is the exclusive distributor of Nissan and 14 Infiniti vehicles in the United States.”). As another district 15 court has noted: 16 Nothing prevented Nissan-Japan from entering the American 17 market through a selling branch or department but instead it 18 formed Nissan-America to serve as exclusive distributor of 19 manufacturer Nissan-Japan's products in the continental United 20 States. Thus, Nissan-America is a mere conduit or vehicle for 21 entering and exploiting the American market. 22 Hitt v. Nissan Motor Co., Ltd., 399 F. Supp. 838, 842 (S.D. Fla. 23 1975) (denying motion by Nissan-Japan to quash service and dismiss 24 complaints for lack of personal jurisdiction and venue).2 25 Nissan-Japan’s relationship with Nissan-America gives Nissan-Japan 26 “substantially the business advantages that it would have enjoyed As such, 27 2 28 The court made the quoted statement in the course of finding that venue was proper. 9 1 if it conducted business in [California] itself.” Khachartryan, 578 2 F. Supp. 2d at 1227; Gray, 560 F. Supp. 2d at 931. Moreover, the 3 close relationship between Nissan-Japan and Nissan-America–-a 4 relationship certainly as close as those in Khachartryan, Gray, 5 Yamaha Motor Co., and Cosper–-makes it “reasonably certain that 6 [Nissan-Japan] would be apprised of the service of process.” See 7 Yamaha Motor Co., Ltd, 174 Cal. App. 4th at 274 (“If it was 8 reasonably certain that a relatively casual sporting goods 9 representative would apprise the “foreign” manufacturer of service 10 in Cosper, it is doubly reasonably certain Yamaha–America will 11 apprise Yamaha–Japan of any service in California.”). Accordingly, 12 Nissan-America meets the definition of “general contractor” for 13 purposes of service of process. 14 Because the requirements first described in Cosper are met, 15 Nissan-Japan’s contentions, taken as true, that Nissan-Japan and 16 Nissan-America are independent businesses that strictly observe 17 corporate formalities and that Nissan-Japan does not does not 18 exercise control over Nissan-America’s activities have no effect on 19 this conclusion. (MTD at 8-9.) 20 Nissan-Japan appears to accept that Khachartryan, Gray, and 21 Yamaha Motor Co. strongly favor Plaintiffs’ position. 22 Nevertheless, Nissan-Japan argues that all three cases should be 23 disregarded because they were decided wrongly and are no longer 24 good law. (MTD at 9; Reply 2-12.) The court is unpersuaded. 25 As an initial matter, this court is bound to follow a state 26 supreme court's interpretation of that state's statutes. Dimidowich 27 v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986). This case 28 turns on California state law because, as noted above, Federal Rule 10 1 of Civil Procedure 4(e)(1) provides that process may be served in 2 accordance with “state law for serving a summons in an action 3 brought in courts of general jurisdiction in the state where the 4 district court is located or where service is made.” And as 5 outlined above, the California Supreme Court has explicitly 6 interpreted the relevant state law statutory term, “general 7 manager,” in the context of its state service of process statutes. 8 Cosper, 53 Cal.2d at 83-84. This court is bound by that 9 interpretation. 10 Nissan-Japan argues that Cosper was decided wrongly because it 11 did not take into account certain statutory interpretation 12 arguments raised by Nissan-Japan in its reply brief. Nissan-Japan 13 argues that Cosper’s definition of “general manager” is at odds 14 with the term’s ordinary meaning, legislative history, and 15 statutory context. (See Reply at 2-7.) Yet, whether or not Nissan- 16 Japan’s arguments have merit, the California Supreme Court had the 17 same interpretive tools at its disposal and yet reached a contrary 18 result. Even were it inclined to so, this court is not in a 19 position to overrule the Court’s decision. 20 Similarly, Nissan-Japan argues that the “character and rank” 21 language in Cosper is no longer good law because the cases the 22 California Supreme Court cited in support of that language in turn 23 rely on statutory language that was subsequently changed. (See 24 Reply at 7.) Yet the key change pointed to by Nissan-Japan, in 25 which the California legislature replaced “managing agent” with 26 “general manager” when it amended California Code of Civil 27 Procedure section 411 in 1931, occurred nearly three decades before 28 Cosper was decided. (Id. at 9.) The Cosper court could have reached 11 1 a different result on the basis of the statutory revision, but it 2 did not. 3 Nissan-Japan further argues that Cosper is no longer good law 4 because it cited language from state statutes that were 5 subsequently revised. The court is unpersuaded. California and 6 federal district courts have relied on the “character and rank” and 7 “substantially the business advantages” language from Cosper in 8 more than a dozen cases since Cosper was decided in 1959. During 9 that period, there were ample opportunities for California’s 10 legislature to further revise its statute or for the California 11 Supreme Court to find occasion to revise the rule. Neither 12 occurred. Indeed, the California appeals court that decided Yamaha 13 Motor Co. criticized the rule of Cosper and invited the California 14 Supreme Court to revisit the decision, titling a subsection of its 15 opinion, “The Supreme Court is Welcome to Revisit Cosper.” 174 16 Cal.App.4th at 275. It nonetheless noted that, in the meantime, the 17 rule of Cosper is binding. Id. at 267 (“[T]here is nothing this 18 court, as a matter of California common law, can do about it. We 19 are a court under authority, and there is a non-overruled, 20 non-distinguishable California Supreme Court case, Cosper v. Smith 21 & Wesson Arms Co. (1959) 53 Cal.2d 77, 346 P.2d 409, that makes 22 service on the California representative of a foreign parent 23 valid—that is, valid as to the foreign parent—under California 24 law.”) The California Supreme Court denied a petition to review the 25 Yamaha Motor Co. decision in July 2009. Id. at 264. 26 27 In short, as long as the rule of Cosper is good law, this court is compelled to follow it, and it will do so here. 28 12 1 B. Service on Claims Manager Larry Okuneff 2 Nissan-Japan asserts that Plaintiffs did not effectively 3 execute service on Nissan-America or Colin Dodge when their process 4 server delivered the papers to Nissan-America Claims Manager Larry 5 Okuneff. (MTD at 6.) Nissan-Japan argues that “[p]ersonal service 6 on a Claims Manager of a corporation is not valid service on the 7 corporation where the Claims Manager has no authority to receive 8 service on behalf of the corporation.” (Id.) In support of this 9 contention, Plaintiffs rely on General Motors Corp. v. Superior 10 Court, 15 Cal.App.3d 81 (1971). In that case, the court held that 11 an alleged statement of a manager’s secretary that the manager was 12 authorized to accept process on behalf of the corporation could not 13 be held to estop the corporation from denying that such authority 14 existed. Id. at 86. 15 Nissan-Japan’s argument is unavailing. General Motors is 16 inapposite to the instant case because, unlike the instant case, it 17 did not deal with a situation involving substitute service. The 18 relevant statutes are California Code of Civil Procedure sections 19 416.10(b) and 415.20(a). Section 415.20(a) provides that service on 20 a corporation can be effected via service on a chief officer of the 21 corporation.3 22 delivery to a corporate official who may be served under section Section 416.10(b) provides that, in lieu of personal 23 24 25 26 27 28 3 Specifically, service may be served on a corporation by delivering a copy of the summons and the complaint to “To the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.” § 416.10(b). 13 1 415.20, a copy of the summons and complaint may be served via 2 substitute service: 3 [1] by leaving a copy of the summons and complaint during 4 usual office hours in his or her office ... with the person 5 who is apparently in charge thereof, and [2] by thereafter 6 mailing a copy of the summons and complaint by first-class 7 mail, postage prepaid to the person to be served at the place 8 where a copy of the summons and complaint were left. 9 10 Cal. Code Civ. Proc. § 415.20(a). Here, Plaintiffs attempted service on Nissan-Japan by serving 11 its subsidiary Nissan-America via substitute service on a senior 12 official of Nissan-America, Colin Dodge. (Opp. at 14.) Plaintiffs 13 did so by (1) leaving the papers at Dodge’s office in Franklin, 14 Tennessee during working hours with Claims Manager Okuneff, and (2) 15 mailing a copy of the papers to Dodge’s office address. (DKT. No. 16 35.) Both the summons and address listed on the envelope sent to 17 Dodge’s address designated the recipient as “Colin Dodge, Chairman, 18 Management Committee-Americas Executive Vice President, and Chief 19 Performance Officer, Nissan North America, Inc., which is general 20 manager of Nissan Jid’osha Kabushiki Kaisha d/b/a Nissan Motor.” 21 (Id. at ¶ 2, pg. 3.) 22 These actions fulfilled the requirements for substitute 23 service under section 415.20(a). Because section 415.20(a) allows 24 for a copy of the summons and complaint to be left “during usual 25 office hours in his or her office ... with the person who is 26 apparently in charge thereof,” it does not matter whether the 27 person who received the papers was authorized to accept service of 28 process on behalf of the corporation. The only requirement is that 14 1 the person was apparently in charge of the office of the person to 2 be served. § 415.20(a). Plaintiffs assert, and Nissan-Japan does 3 not appear to contest, that Okuneff was apparently in charge of 4 office of Dodge. (DKT No. 35 ¶¶ 2(a), 2(b), 4(b)(2).) Nor does 5 Nissan-Japan assert any deficiency in Plaintiffs’ subsequent 6 mailing of the papers to Dodge. Therefore, Onuneff’s purported lack 7 of authority to accept service of process is not a basis for 8 finding the service deficient. 9 10 11 C. Diligence of Plaintiffs in Effecting Substitute Service Nissan-Japan next urges the court to find that service was 12 ineffective because Plaintiffs were not “reasonably diligent” in 13 attempting to serve Nissan-America’s chairperson, Colin Dodge. (See 14 Mot. at 9-10; Reply at 12-13.) 15 Under California law, the plaintiff bears the burden of 16 showing that she demonstrated reasonable diligence at direct 17 service before substitute service is permitted. 18 Code of Civil Procedure section 415.20(a); Evartt v. Superior 19 Court, 89 Cal.App.3d 795, 801 (Cal. Ct. App. 1979). However, “each 20 case must be judged upon its own facts” and “‘[n]o single formula 21 nor mode of search can be said to constitute due diligence in every 22 case.’” Evartt, 89 Cal.App.3d at 801, quoting Donel, Inc. v. 23 Badalian, 87 Cal.App.3d 327, 333 (Cal. Ct. App. 1978). California’s 24 Supreme Court has held that the state’s service of process rules 25 should be “liberally construed to effectuate service and uphold the 26 jurisdiction of the court if actual notice has been received by the 27 defendant, and in the last analysis the question of service should 28 be resolved by considering each situation from a practical 15 See California 1 standpoint.“ Pasadena Medi-Ctr. Associates v. Superior Court, 9 2 Cal. 3d 773, 778 (1973) (internal citations and quotation marks 3 omitted). 4 Nissan-Japan argues that Plaintiffs failed to demonstrate 5 reasonable diligence prior to effecting substitute service on Colin 6 Dodge because “Plaintiffs’ process server (a) did not attempt any 7 type of direct service on Colin Dodge; (b) did check the ‘due 8 diligence’ box on his proof of service indicating that he ‘made at 9 least three attempts to personally serve the defendant’; and (c) 10 did not attach any due diligence declaration to his proof of 11 service.” (Mot. at 10.) 12 Although this is a reasonably close question, the court finds 13 that Plaintiffs exercised sufficient diligence under the 14 circumstances. Because actual notice was received by Nissan-Japan 15 via Nissan-America, the court must construe California’s service of 16 process statute liberally. Pasadena Medi-Ctr. Associates, 9 Cal. 3d 17 at 778. From a practical perspective, considering the relatively 18 low likelihood that the chairperson of a corporation as large as 19 Nissan-America would be made accessible to a process server, 20 multiple attempts at personal service would likely have been 21 futile. As noted by Plaintiffs, prior to the current effort to 22 serve Nissan-Japan, Plaintiffs made at least one prior attempt to 23 serve Colin Dodge at Nissan-America’s headquarters (though that 24 effort was ineffective). (See DKT No. 31.) Contrary to Nissan- 25 Japan’s assertion, and notwithstanding a conclusory finding to the 26 contrary in Moletech Global Hong Kong Ltd. v. Pojery Trading Co., 27 2009 WL 506873 (N.D. Cal. Feb. 27, 28 set forth no hard and fast rule requiring that Plaintiffs make 16 2009), California courts have 1 three or any other number of attempts at personal service. See 2 Evartt, 89 Cal. App. 3d at 801. In light of the circumstances here, 3 the court finds that the reasonable diligence requirement was met. 4 To hold otherwise would further the kind of “unnecessary ... 5 disputes over legal technicalities, without prejudicing the right 6 of defendants to proper notice of court proceedings” that the 7 liberal construction of service process statutes commanded by the 8 California Supreme Court was expressly intended to avoid. Pasadena 9 Medi-Ctr. Associates, 9 Cal. 3d at 778. 10 11 12 D. Adequacy of Summons Finally, Nissan-Japan argues that the court should dismiss the 13 complaint on the basis that the summons served on Nissan-America 14 was defective because it did not contain language specifically 15 stating that Colin Dodge was being served as a representative of 16 Nissan-America. (Mot. at 11.) 17 Nissan-Japan points to California Code of Civil Procedure 18 section 412.3, which provides that in an action against a 19 corporation, the copy of the summons that is served “shall contain 20 a notice stating in substance: ‘To the person served: You are 21 hereby served in the within action (or special proceeding) on 22 behalf of (here state the name of the corporation...’” Plaintiffs 23 have not included such language in their summons. (See DKT No. 33.) 24 However, as Plaintiffs point out, the contents of a summons 25 for a proceeding in district court are governed by Federal Rule of 26 Civil Procedure 4(a), which does not require that a summons contain 27 the language in question. 28 summons: Rather, Rule 4(a) requires only that a 17 1 2 (A) name the court and the parties; 3 (B) be directed to the defendant; 4 (C) state the name and address of the plaintiff's attorney 5 or—if unrepresented—of the plaintiff; 6 (D) state the time within which the defendant must appear and 7 defend; 8 (E) notify the defendant that a failure to appear and defend 9 will result in a default judgment against the defendant for 10 the relief demanded in the complaint; 11 (F) be signed by the clerk; and 12 (G) bear the court's seal. 13 Fed. R. Civ. P. 4(a). Plaintiffs’ summons appears to comply with 14 these requirements. (See DKT No. 33.) 15 As discussed above, Rule 4, subparts (h) and (e) provide, in 16 combination, that the manner of service of a summons on a 17 corporation be carried out in accordance with state law. However, 18 the rules do not leave to state law the question of the substantive 19 contents of the summons itself. Indeed, as Plaintiffs note, Nissan- 20 Japan has failed to cite, and the court has been unable to find, 21 any district court case granting a dismissal under Rule 12(b)(4) on 22 the ground that the federal summons failed to include language set 23 forth in Section 412.30 of the California Code of Civil Procedure. 24 The court finds of no relevance that the process server 25 apparently wrote the phrase “For Nissan North America Only” on the 26 summons. (Okuneff Decl. ¶ 5 and Exh. 1.) As Nissan-Japan admits, 27 the phrase was written on the summons at the demand of Okuneff as a 28 condition of accepting receipt of the summons. (Okuneff Decl. ¶ 5.) 18 1 For the reasons explained above, Okuneff, as a person apparently in 2 charge of the office of Dodge, was not in a position to place 3 conditions on receipt of service of process under California’s 4 substitute service statute. Moreover, as Plaintiffs point out, 5 giving effect to phrases written on summonses by process servers at 6 the demand of those to be served would invite chaos on the service 7 of process scheme. (Opp. at 17.) 8 For these reasons, Plaintiffs complied with the requirements 9 of the federal rules and the court will not dismiss the complaint 10 on the ground that the summons was defective. 11 12 IT IS SO ORDERED. 13 Dated: December 12, 2013 14 DEAN D. PREGERSON United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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