(PC) Sims v. Lizarraga ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARIUS SIMS, No. 2:16-cv-0204 JAM AC P 12 Plaintiff, 13 v. ORDER 14 J. CANTU, et al., 15 Defendants. 16 17 Defendants have filed an amended notice of death, which indicates that it was served by 18 mail on plaintiff’s sister, Carla Bell, at 11334 Cresbook St., Norwalk, CA 90650-3705. ECF No. 19 40. 20 From the certificate of service, it does not appear that defendants have properly served 21 Ms. Bell. Although parties may be served by simply mailing the paper to be served under Federal 22 Rule of Civil Procedure 5, nonparties being served a statement noting death must be served in 23 accordance with the requirements of Rule 4. Fed. R. Civ. P. 25(a)(3); Barlow v. Ground, 39 F.3d 24 231, 233-34 (9th Cir. 1994). Rule 4(e)(1) states that service may be completed “following state 25 law for serving a summons in an action brought in courts of general jurisdiction in the state where 26 the district court is located or where service is made.” Defendants may also choose to (1) deliver 27 notice to the individual personally; (2) leave a copy at “the individual’s dwelling or usual place of 28 abode with someone of suitable age and discretion who resides there; or” (3) deliver the notice 1 || “to an agent authorized by appointment or by law to receive service of process.” Fed. R. Civ. P. 2 | 4(e)(@2). Accordingly, service by mail on a person within California is not permitted except as set 3 | forth in California Code of Civil Procedure § 415.30(a),' which requires that the document to be 4 | served be accompanied by “two copies of the notice and acknowledgement provided for in 5 || subdivision (b) and a return envelope, postage prepaid, addressed to the sender.” See also 6 || Barlow, 39 F.3d at 234 (citations omitted). Defendants’ statement noting plaintiff’s death and 7 | declaration of service do not reflect that they have complied with these requirements. ECF No. 8 || 40. Furthermore, service under § 415.30 is not complete until the acknowledgement of receipt is 9 | completed, and then only if the acknowledgement is returned to the sender. Cal. Civ. Proc. Code 10 | § 415.30(c). 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Within fourteen days of service of this order, defendants shall either provide an 13 || amended certificate of service showing that they complied with California Code of Civil 14 || Procedure § 415.30 or re-serve the statement noting death on plaintiffs sister, Carla Bell, in a 15 || manner that complies with the Federal Rules of Civil Procedure. 16 2. If defendants choose to serve the notice in accordance with California Code of Civil 17 || Procedure § 415.30, they must file the completed acknowledgment of receipt within forty-five 18 || days of the date the notice was mailed. If the acknowledgment of receipt is not returned within 19 | the time provided by § 415.30, defendants must notify the court and attempt to serve Ms. Bell by 20 || other means. 21 || DATED: October 25, 2019 ~ 22 Chthien—Chare ALLISON CLAIRE 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 ' California provides an alternative method for serving individuals outside the state. Cal. Civ. 28 | Proc. Code § 415.40.