Chucho Produce LLC v. Tonys Fresh Produce Incorporated ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Chucho Produce LLC, No. CV-21-00372-TUC-RM 10 Plaintiff, ORDER 11 v. 12 Tonys Fresh Produce Incorporated, et al., 13 Defendants. 14 15 Pending before the Court is Plaintiff Chucho Produce LLC’s Motion for Alternate 16 Service and Extension of Time to Secure Service. (Doc. 11.) Plaintiff avers that, over 17 the last month, it has made at least seven attempts to serve Defendants Tonys Fresh 18 Produce Incorporated and Anthony Mendez via traditional methods of service at three 19 different addresses, and has also attempted to obtain waiver of service. (Id. at 1-3.) 20 Plaintiff argues that service by traditional means has proven impractical, and Plaintiff 21 requests permission to serve Defendants via email. (Id. at 1-2, 4-8.) Plaintiff also 22 requests a sixty-day extension of the deadline to effect service. (Id. at 2, 8-9.) In support 23 of its Motion, Plaintiff attaches a declaration by Alberto Cruz Elias Calles and multiple 24 exhibits documenting Plaintiff’s service attempts. (Doc. 11-2.) 25 The Federal Rules of Civil Procedure provide that an individual within a judicial 26 district of the United States may be served by “following state law for serving a summons 27 in an action brought in courts of general jurisdiction in the state where the district court is 28 located or where service is made.” Fed. R. Civ. P. 4(e)(1). The Arizona Rules of Civil 1 Procedure allow service by alternative means if a party shows that other delineated means 2 of service “are impracticable.” Ariz. R. Civ. P. 4.1(k)(1). “If the court allows an 3 alternative means of service, the serving party must make a reasonable effort to provide 4 the person being served with actual notice of the action’s commencement,” and “must 5 mail the summons, the pleading being served, and any court order authorizing an 6 alternative means of service to the last-known business or residential address of the 7 person being served.” Ariz. R. Civ. P. 4.1(k)(2). 8 The Court has reviewed Plaintiff’s Motion, the accompanying declaration, and the 9 attached exhibits. On the basis of these materials, the Court finds that Plaintiff has shown 10 that personal service on Defendants has proven impracticable despite the reasonable 11 efforts of Plaintiff. The Court also finds that—in conjunction with sending Defendants 12 the Summons and Complaint via certified mail—the alternative method of service by 13 email proposed by Plaintiff is “reasonably calculated, under all the circumstances, to 14 apprise” Defendants of the pendency of this action. Rio Props., Inc. v. Rio Int’l Interlink, 15 284 F.3d 1007, 1016 (9th Cir. 2002) (quoting Mullane v. Cent. Hanover Bank & Trust 16 Co., 339 U.S. 306, 314 (1950)). Furthermore, the Court finds good cause under Federal 17 Rule of Civil Procedure 4(m) to extend the service deadline. 18 Accordingly, 19 IT IS ORDERED that Plaintiff’s Motion for Alternate Service and Extension of 20 Time to Secure Service (Doc. 11) is granted. Plaintiff may serve Defendants by sending 21 Defendants the Summons, Complaint, Motion for Temporary Restraining Order and 22 Preliminary Injunction, and a copy of this Order using each of the following methods: 23 1. Emailing the Summons, Complaint, Motion for Temporary Restraining Order and 24 Preliminary Injunction, and a copy of this Order to Defendants via the email 25 address tonysfreshp19@gmail.com; 26 2. Mailing the Summons, Complaint, Motion for Temporary Restraining Order and 27 Preliminary Injunction, and a copy of this Order to Defendants via certified mail to 28 the following addresses: 1 =" Chucho Produce LLC; 1500 East Olympic Boulevard, Unit #30; Los 2 Angeles, CA 90021-1967 3 =» Anthony Mendez; 7487 Cobble Creek Drive, Corona, CA 92880 4 Service will be effectuated upon the completion of each of these methods. 5 IT IS FURTHER ORDERED that the service deadline is extended sixty (60) || days from the date this Order is filed. 7 Dated this 15th day of November, 2021. 8 9 10 —, Dl Lvajcn,) 11 ANGE Honorable Rostsiary □□□□□□□ 12 United States District □□□□□ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-