Wells Fargo Equipment Finance, Inc. v. Alamillo Rebar, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WELLS FARGO EQUIPMENT No. 2:20–cv–620–TLN–KJN FINANCE, INC., 12 ORDER Plaintiff, 13 (ECF No. 9) v. 14 ALAMILLO REBAR, INC., et al., 15 Defendants. 16 17 On June 26, 2020, plaintiff filed a motion to permit service by publication under Federal 18 Rule of Civil Procedure 4(e), and set the matter for a July 30, 2020 hearing before the 19 undersigned.1 (ECF No. 9.) Plaintiff states that “[d]espite reasonable diligence, plaintiff has been 20 unable to ascertain the whereabouts of one of the defendants, Laurence Alamillo.” (Id.) Plaintiff 21 states that it attempted to serve Laurence2 at two addresses noted in its LexisNexis “Find a 22 Person” search, as well as at the address listed on a guarantee signed by Laurence in Plaintiff’s 23 possession. (See ECF No. 9-1 and 9-2, declarations of Melissa Harris and Michael J. Gomez.) 24 However, the process servers who attempted personal service at these addresses stated that each 25 was told Laurence did not reside at those addresses. (See Id.) 26 1 This matter is referred to the undersigned pursuant to 28 U.S.C. § 636 and Local Rule 27 302(c)(21). 28 2 Given the familial relations, the court will use first names at times. No disrespect is intended. 1 Under Federal Rule of Civil Procedure 4(e), a plaintiff may serve an individual in the 2 United States using any method permitted by the law of the state in which the district court is 3 located or in which service is affected. Fed. R. Civ. P. 4(e)(1). California law allows for five 4 basic methods of service: (1) personal delivery to the party, see Cal. Civ. Proc. Code § 415.10; 5 (2) delivery to someone else at the party’s usual residence or place of business with mailing after 6 (known as “substitute service”), see id. § 415.20; (3) service by mail with acknowledgment of 7 receipt, see id. § 415.30; (4) service on persons outside the state by certified or registered mail 8 with a return receipt requested, see id. § 415.40; and (5) service by publication, see id. § 415.50. 9 California law permits service by publication “if upon affidavit it appears to the 10 satisfaction of the court in which the action is pending that the party to be served cannot with 11 reasonable diligence be served in another manner.” Cal. Civ. Proc. Code § 415.50(a). In 12 determining whether a plaintiff has exercised “reasonable diligence,” the court examines the 13 affidavit to see whether the plaintiff “took those steps a reasonable person who truly desired to 14 give notice would have taken under the circumstances.” Donel, Inc. v. Badalian, 87 Cal. App. 3d 15 327, 333 (1978). The “reasonable diligence” requirement “denotes a thorough, systematic 16 investigation and inquiry conducted in good faith by the party or his agent or attorney.” Kott v. 17 Super. Ct., 45 Cal. App. 4th 1126, 1137 (1996). “Before allowing a plaintiff to resort to service 18 by publication, the courts necessarily require him to show exhaustive attempts to locate the 19 defendant, for it is generally recognized that service by publication rarely results in actual notice.” 20 Watts v. Crawford, 10 Cal. 4th 743, 749 n.5 (1995). Because of due process concerns, service by 21 publication should be allowed only “as a last resort,” and courts should consider “the myriad of 22 other avenues” a plaintiff could take to effectuate service. Donel, 87 Cal. App. 3d at 333. A 23 plaintiff will generally satisfy its burden through “[a] number of honest attempts to learn [a] 24 defendant’s whereabouts or his address” by, among other things, asking his relatives, friends, 25 acquaintances, or employers. Kott, 45 Cal. App. 4th at 1137. “These are likely sources of 26 information, and consequently must be searched before resorting to service by publication.” Id. 27 The reasonable-diligence inquiry is fact and case specific. Id. at 1137-38 (“[T]he showing of 28 diligence in a given case must rest on its own facts and no single formula or mode of search can 1 be said to constitute due diligence in every case.”). “However, when there is evidence that a 2 defendant is evading service, courts are more willing to allow alternative methods such as service 3 by publication.” See Felix v. Anderson, 2015 WL 545483, at *2 (N.D. Cal. Feb. 9, 2015) 4 Here, the court finds plaintiff’s attempts to serve Laurence Alamillo by sending a process 5 server to three potential addresses to be satisfactory. However, the court cannot say that plaintiff 6 has exhausted all reasonable attempts to locate Laurence, and therefore cannot condone a leap to 7 plaintiff’s desired “last resort.” Donel, 87 Cal. App. 3d at 333. Specifically, it appears that 8 plaintiff has been successful at serving the other two defendants in this case — Alamillo Rebar, 9 Inc. and Joseph Alamillo — as Joseph submitted a waiver of service on behalf of himself and the 10 company. (See ECF Nos. 6, 8.) Plaintiff did not indicate that it attempted to contact Joseph, or 11 anyone at the company, to determine the whereabouts of Laurence, and it appears defendants are 12 engaged in a family business. (See ECF No. 1.) Thus, before the court proceeds with granting 13 publication by service, plaintiff shall contact Joseph and a representative of the company to see if 14 anyone can verify the whereabouts of Laurence (including asking Laurence under oath if 15 necessary). Kott, 45 Cal. App. 4th at 1137. 16 The court will not deny plaintiff’s motion at this time. Instead, the undersigned vacates 17 the hearing and leaves the motion pending. Should plaintiff be able to determine the whereabouts 18 of Laurence and serve him, plaintiff may simply withdraw its motion. However, should this 19 additional line of inquiry prove futile, plaintiff may simply re-notice its motion for a later hearing, 20 and file a supplemental declaration describing its efforts to determine Laurence’s whereabouts 21 through Joseph, the company, or any others. 22 The court will have this order sent to Joseph Alamillo and Alamillo Rebar, so that 23 defendants are aware of the court’s position on this matter. If Joseph or a company representative 24 are aware of Laurence’s whereabouts, their assistance in locating him would be appreciated.3 25 Should it appear Laurence is evading service, the court will have no choice but to order service by 26 3 Joseph Alamillo signed the waiver of service personally rather than through counsel. Further, at 27 the time of this order, neither Joseph nor Alamillo Rebar have appeared in this action or have indicated they are represented by counsel. Should defendants now have counsel, they may inform 28 plaintiff as much, and plaintiff may obtain the needed information through opposing counsel. WwAIS 2 CU UV VUVEUUFTEINOINGIN RAVUUPTPOTIL tah FIR VEIVeN PAY SF UT tT 1 | publication. See Felix, 2015 WL 545483 at *2. Further, defendants should be aware that if 2 | plaintiff is required to serve Laurence by publication (or by continued efforts of a process server), 3 | and plaintiff ultimately wins its case, the costs and fees associated with attempting to serve 4 | Laurence can be taxed. See, e.g., United States v. Su Qin Yang, 2018 WL 6314558, at *2 (C.D. 5 || Cal. Sept. 20, 2018) (awarding almost $1,000 in costs to plaintiff, payable by defendant, for 6 | having to effectuate service through multiple process servers and through publication in the local 7 || newspaper). 8 Accordingly, it is HEREBY ORDERED that: 9 1. The hearing on plaintiff's motion for publication service, currently set for a July 30, 10 2020 hearing, is VACATED; 11 2. Plaintiff shall make attempts to locate Laurence Alamillo as described in this order. 12 Thereafter, plaintiff may either: 13 a. Withdraw its motion to serve Laurence by publication, should it be successful in 14 locating and serving him, or 15 b. Re-notice the motion for a later hearing and submit a supplemental declaration 16 describing its efforts to locate Laurence, should it be unable to determine his 17 whereabouts and serve him; 18 3. The Clerk of the Court is directed to serve this order on Joseph Alamillo and Alamillo 19 Rebar, Inc. at the addresses noted in the executed waivers of service (see ECF Nos. 6, 8.). 20 | Dated: July 6, 2020 Aectl Aharon 22 KENDALL J. NE well. 620 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28