Bernhoft Law Firm, S.C. v. Pollock, No. 3:2012cv01608 - Document 13 (S.D. Cal. 2012)
Court Description: ORDER Denying 4 Defendant's Motion To Dismiss For Insufficient Service. Signed by Judge Thomas J. Whelan on 11/14/2012. (srm)
Download PDF
<![CDATA[
Bernhoft Law Firm, S.C. v. Pollock Doc. 13 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 THE BERNHOFT LAW FIRM, S.C., CASE NO. 3:12-CV-1608 W-BLM Plaintiff, ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR INSUFFICIENT SERVICE [DOC. 4]. 10 11 12 v. 13 14 BLAINE POLLOCK, 15 Defendant. 16 17 18 Pending before the Court is Defendant Blaine Pollock’s (“Defendant”) motion 19 to dismiss for insufficient service under Federal Rule of Civil Procedure 12(b)(5). 20 (Def.’s MTD [Doc. 4].) Plaintiff The Bernhoft Law Firm, S.C., (“Plaintiff”) opposes. 21 (Pl.’s Opp’n [Doc. 6].) The Court decides the matter on the papers and without oral 22 argument. See S.D. Cal. Civ. L. R. 7.1(d.1). For the reasons discussed below, the 23 Court DENIES Defendant’s motion. 24 25 I. BACKGROUND 26 On June 28, 2012, Plaintiff filed a complaint against Defendant in federal court. 27 (Compl. [Doc. 1].) The court issued a summons on the same date. (Summons Issued 28 [Doc. 2].) On July 9, 2012, Plaintiff filed its proof of service of summons. (Proof of -1- 12cv1608w Dockets.Justia.com 1 Service, [Doc. 3-1].) The proof of service indicates that Plaintiff’s process server made 2 seven attempts to serve Defendant over the course of a week: twice at Defendant’s 3 office during regular office hours and five times at Defendant’s home. (Id. at 3.) It also 4 lists the home and business addresses where the process server attempted to effectuate 5 personal service. (Id.) In addition, the proof of service indicates that the process server 6 effectuated substitute service on Jane Doe, a person at least 18 years old and apparently 7 in charge of the Defendant’s office at 910 Hale Place, Suite 101, Chula Vista, CA, 8 91914. ( Id.) 9 On July 30, 2012, Pollock filed a motion to dismiss for insufficient service of 10 process, contending that Plaintiff did not exercise “reasonable diligence” to personally 11 serve Pollock. (Def.’s MTD [Doc. 4] 2-3.) Pollock also contends that substitute service 12 was deficient because Jane Doe was not a designated agent for the purpose of receiving 13 a summons. (Id. at 4.) On September 1, 2012, Plaintiff filed its opposition to the 14 motion, arguing that the it did exercise “reasonable diligence” in attempting to 15 personally serve Defendant and that the subsequent substitute service was proper. (Pl.’s 16 Opp’n [Doc. 6].) On September 10, 2012, Defendant filed a reply. (Def.’s Reply in 17 Supp. of MTD [Doc. 7].) 18 19 II. LEGAL STANDARD 20 Rule 12(b) (5) of the Federal Rules of Civil Procedure authorizes a defendant to 21 move for dismissal for insufficiency of service of process. See Fed. R. Civ. P. 12(b)(5). 22 When a defendant challenges service, the plaintiff bears the burden of establishing the 23 validity of service as governed by Federal Rule of Civil Procedure 4. See Emine Tech. 24 Co. v. Aten Int'l Co., 2008 WL 5000526, at *2 (N. D. Cal. Nov. 21, 2008). Plaintiff 25 normally meets this burden by producing the process server's return or proof of service. 26 Id. That return is generally accepted as prima facie evidence that service was effected, 27 and of the manner in which it was effected. Id. Unless some defect in service is shown 28 -2- 12cv1608w 1 on the face of the return, Defendant is required to produce affidavits, discovery 2 materials, or other admissible evidence establishing the lack of proper service. Id. 3 Rule 4(e) provides four alternatives for service of individuals. Service is effective 4 pursuant to (1) the law of the state where the district court is located or of the state 5 where service is effected; (2) by delivering a copy of the summons and of the complaint 6 to the individual personally; (3) by leaving copies thereof at the individual's dwelling 7 house or usual place of abode with some person of suitable age and discretion then 8 residing therein; or (4) by delivering a copy of the summons and of the complaint to an 9 agent authorized by appointment or by law to receive service of process. 10 If the plaintiff is unable to satisfy its burden of demonstrating effective service, 11 the Court has discretion to either dismiss or retain the action. Emine Tech. Co., 2008 12 WL 5000526 at *2. If the Court decides not to dismiss, it quashes the ineffective 13 service that has been made on the defendant and provides the plaintiff the opportunity 14 to serve the defendant again effectively. See Stevens v. Security Pacific Nat'l Bank, 538 15 F.2d 1387, 1389 (9th Cir.1976). 16 17 III. 18 19 20 21 22 23 24 25 26 27 28 DISCUSSION 1. Plaintiff exercised “reasonable diligence” under California law in attempting to effectuate personal service upon Defendant, and was thus entitled to serve Defendant by substitute service. Under California law, substitute service is proper “if a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served.” See Ca. Code Civ. P. 415.20. Ordinarily, two or three attempts at personal service at a proper place satisfies the requirement of reasonable diligence and allow substituted service to be made. Bein v. Brechtel-Jochim Group, Inc., 8 Cal. Rptr. 2d 351, 352 (1992)(citing Espindola v. Nunez, 245 Cal. Rptr. 596, 598 (1988)). California’s service of process statutes are “to be liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant.” Bein, 8 Cal. Rptr. 2d at 353 (citing Pasadena Medi-Center Associates v. Superior Court, 9 Cal. -3- 12cv1608w 1 3d 773, 778 (1973)). The California Supreme Court’s “admonition to construe process 2 statutes liberally extends to substituted service as well as personal service.” Bein, 8 Cal. 3 Rptr. 2d at 353 (citing Espindola, 245 Cal. Rptr. at 599.) 4 Here, Defendant argues, inter alia,1 that substitute service was ineffective under 5 California law and thus ineffective under Fed. R. Civ. P. 4(e)(1) because Plaintiff did 6 not establish “reasonable diligence” in attempting to effectuate personal service. (Def.’s 7 MTD [Doc. 4]2-3.) Specifically, Defendant asserts that “there is absolutely no 8 evidence to illustrate that any attempts were made to personally serve Defendant Blaine 9 Pollock whatsoever.” (Id. at 3.) Defendant maintains that “the papers filed with the 10 court merely reflect that Plaintiffs left the summons and complaint ‘at the 11 [Defendant]’s office with a clerk or other person in charge’ ” and show no attempts to 12 personally serve Defendant. (Id. at 3.) Defendant is wrong. 13 Plaintiff’s proof of service provides prima facie evidence that Plaintiff exercised 14 “reasonable diligence” in attempting to effectuate personal service. (Pl.’sProof of Service 15 [Doc. 3]2); Mechanical Marketing Inc. v. Sixxon Precision Machinery Co., Ltd., 2011 16 WL 4635546, *2. Plaintiff’s process server attempted to serve the Defendant personally 17 seven times, at both his home and office, at various times during the day. (Pl.’s Proof 18 of Service [Doc. 3]2.) Defendant’s moving papers provide no evidence to contradict this 19 prima facie showing.2 Instead, Defendant concludes that “there is absolutely no 20 evidence to illustrate any attempts” to effectuate personal service without providing any 21 22 1 Defendant also argues that Plaintiff failed to serve the complaint in accordance with 23 Fed. R. Civ. P. 4(e)(2). Because the Court finds that Plaintiff properly served the complaint 24 under Fed. R. Civ. P. 4(e)(1), there is no need to address this argument. 2 Defendant advances a number of arguments attacking Plaintiff’s “reasonable diligence” in attempting personal service for the first time in its reply brief. These arguments were waived 26 by omission from the opening brief. Officers for Justice v. Civil Service Com’n of City and County of San Francisco, 979 F.2d 721, 725-726 (9th Cir. 1992), cert. denied, 507 U.S. 1004 27 (1993). Because the Defendant has waived these issues, the Court does not address them. 25 28 -4- 12cv1608w 1 facts to support this claim. (Id.) Such a conclusory statement does not defeat Plaintiff’s 2 prima facie showing of “reasonable diligence.” See Mech. Mktg., Inc. at *2. 3 In addition, Defendant’s reliance on Burchett v. City of Newport Beach is 4 unfounded. 40 Cal. Rptr. 2d 1 (Ct. App. 1995). In Burchett, the Court found that 5 substitute service was improper because “there was not even one attempt made to effect 6 personal service.” Burchett, 40 Cal. Rptr. 2d at 3. Here, Plaintiff attempted to effect 7 personal service seven times, which renders Burchett inapposite. Id. In light of the 8 foregoing, the Court finds that Plaintiff exercised “reasonable diligence” in its attempts 9 to effect personal service on the Defendant and was thus entitled to effect substitute 10 service upon the Defendant. Therefore, the only issue that remains is whether Plaintiff 11 properly effected substitute service on the Defendant. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2. Plaintiff properly effected substitute service in accordance with California law. Substitute service may be effected upon “a person apparently in charge of [Defendant’s] office, place of business...at least 18 years of age, who shall be informed of the contents thereof.” Bein, 8 Cal. Rptr. 2d at 353 (citing Ca. Code Civ. P. 415.20). Plaintiff must also mail a copy of the summons and complaint to “the person to be served at the place where a copy of the summons and of the complaint were left.” Id. Defendant does not attack the validity of Plaintiff’s substitute service in its moving papers.3 In fact, Defendant explicitly concedes that Plaintiff’s proof of service establishes that Plaintiff effected service at Defendant’s office upon “a clerk or other person in charge.” (Def.’s M. To Quash [Doc. 4]3.) In addition, Defendant never contests the process server’s declaration that he mailed a copy of the summons and complaint to Defendant’s office. (Proof of Service [Doc. 3-1] 4.) Therefore, the Court finds that Defendant has failed to contradict Plaintiff’s prima facie evidence that it 3 Defendant attacks the validity of Plaintiff’s substitute service for the first time in its 28 reply. The Court does not address these arguments as they have been waived. See Officers for Justice, 979 F.2d at 725-26. -5- 12cv1608w 1 effectuated proper substitute service. 2 3 IV. CONCLUSION AND ORDER 4 For these reasons, and because California’s service of process statutes are to be 5 liberally construed to effectuate service and uphold jurisdiction when actual notice has 6 been received, the Court DENIES Pollock’s motion to quash summons. 7 8 9 10 IT IS SO ORDERED. DATED: November 14, 2012 11 12 13 Hon. Thomas J. Whelan 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 12cv1608w
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
