Principal Life Insurance Company v. Calloway ( 2019 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 PRINCIPAL LIFE INSURANCE COMPANY, 9 Case No. 1:19-cv-00147-DAD-SKO Plaintiff, 10 ORDER DENYING WITHOUT v. PREJUDICE PLAINTIFF’S MOTION FOR 11 PERMISSION TO SERVE DEFENDANT J.D. FLORENCE BY PUBLICATION 12 RAYMOND CALLOWAY, et al., ORDER SETTING INITIAL SCHEDULING 13 Defendants. CONFERENCE 14 (Doc. 39) _____________________________________/ 15 I. INTRODUCTION 16 Plaintiff filed this complaint in interpleader on February 1, 2019. (Doc. 1.) Since then, 17 18 Plaintiff has experienced issues filing proof of service on certain Defendants, and only recently 19 filed requests for entry of default or notices of voluntary dismissal as to the non-appearing 20 Defendants. (See Docs. 18, 20, 24, 26, 27, 30, 31, 32, 33, 34, 35.) Plaintiff has still not served 21 Defendant J.D. Florence, (see Doc. 35 at 2), and requests leave to serve Defendant J.D. Florence 22 by publication, (Doc. 39). For the reasons stated below, the Court DENIES WITHOUT 23 PREJUDICE Plaintiff’s motion.1 24 25 26 27 1 Because the initial scheduling conference was continued several times due to the delay in all Defendants appearing, (see Docs. 13, 15, 21), and was vacated when the Court directed Plaintiff to show cause why sanctions should not be 28 imposed for its failure to comply with Court orders, (see Doc. 24), the Court will also re-set the initial scheduling 1 2 Rule 4 of the Federal Rules of Civil Procedure provides that proper service can be made by 3 “following state law for serving a summons in an action brought in courts of general jurisdiction in 4 the state where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1). 5 Therefore, California’s statute for service by publication will govern whether such service is proper 6 in this action. 7 California Code of Civil Procedure § 415.50(a)(1) provides, in pertinent part, that “[a] 8 summons may be served by publication if upon affidavit it appears to the satisfaction of the court in 9 10 which the action is pending that the party to be served cannot with reasonable diligence be served 11 in another manner specified in this article and that . . . [a] cause of action exists against the party 12 upon whom service is to be made or he or she is a necessary or proper party to the action.” California 13 Government Code § 6060 requires that the summons be “published in a newspaper of general 14 circulation for the period prescribed.”2 15 Service by publication is appropriate only where, after reasonable diligence, the defendant’s 16 whereabouts and his dwelling place or usual place of abode cannot be ascertained. Watts v. 17 18 Crawford, 10 Cal. 4th 743, 749 n.5 (1995). However, service by publication is a “last resort,” so 19 the courts require a plaintiff “to show exhaustive attempts to locate the defendant.” Watts, 10 Cal. 20 4th at 749 n.5. “Reasonable diligence” in attempting to serve by other methods connotes: 21 [A] thorough, systematic investigation and inquiry conducted in good faith . . . . A 22 number of honest attempts to learn defendant’s whereabouts or address by inquiry of relatives, friends, and acquaintances, or of an employer, and by investigation of 23 appropriate city and telephone directories, the voters’ register, and the real and personal 24 property index in the assessor’s office, near the defendant’s last known location, are generally sufficient. These are likely sources of information, and consequently must be 25 searched before resorting to service by publication. However, the showing of diligence in a given case must rest on its own facts and neither single formula nor mode of search 26 can be said to constitute due diligence in every case. 27 2 A “newspaper of general circulation” is a “newspaper published for the dissemination of local or telegraphic news and 28 intelligence of a general character, which has a bona fide subscription list of paying subscribers, and has been established 1 Kott v. Superior Court, 45 Cal. App. 4th 1126, 1137–38 (1996) (internal citations and quotations 2 omitted). When attempting to effect personal service, a person attempting to effect service is not 3 required to “exhaust all avenues of obtaining a current address” once he is informed that a defendant 4 no longer lives at a residence. Ellard v. Conway, 94 Cal. App. 4th 540, 545 (2001). 5 6 III. DISCUSSION 7 A. Plaintiff’s Motion Fails to Comply with Rule 4 8 1. Plaintiff Has Not Established by Affidavit the Existence of a Valid Cause of Action Against J.D. Florence or that J.D. Florence is a Necessary or Proper 9 Party. 10 Under California law, “[f]or the purpose of service by publication, the existence of a cause 11 of action is a jurisdictional fact.” Harris v. Cavasso, 68 Cal.App.3d 723, 726 (1977). “The 12 requesting party must submit an affidavit containing a statement of some fact that would be legal 13 14 evidence that the cause of action exists for the court to have jurisdiction to order service by 15 publication.” Integon Preferred Insurance Company v. Camacho, No. 1:16-cv-01496-AWI-SAB, 16 2017 WL 1351704, at *2 (E.D. Cal. Mar. 24, 2017) (emphasis added) (citing Harris, 68 Cal.App.3d 17 at 726)). “When jurisdiction is sought to be established by constructive service, the statutory 18 conditions for such service must be strictly complied with or the judgment is subject to collateral 19 attack.” Donel, Inc. v. Badalian, 87 Cal.App.3d 327, 334 (1978). Thus, when applying for service 20 21 by publication, the requesting party must attach an affidavit “containing a statement of facts to 22 establish that a ‘cause of action exists against the party upon whom service is to be made or he or 23 she is a necessary or proper party to the action.’” Integon, 2017 WL 1351704, at *2 (quoting Cal. 24 Code Civ. P. § 415.50(a)(1)). 25 Here, Plaintiff’s motion contains very little information regarding Defendant J.D. Florence, 26 aside from the fact that he is a named defendant in the complaint. (See Doc. 39.) This is insufficient 27 to justify service by publication. See Integon, 2017 WL 1351704, at *2. Plaintiff must attach an 28 1 2 against Defendant J.D. Florence, or facts establishing that Defendant J.D. Florence is a necessary or 3 proper party. See id. (“The affidavit filed in support of the motion for substitute service must contain 4 independent evidentiary support in the form of a sworn statement of facts to support a cause of 5 action against the defendant, and if it does not, the Court does not have jurisdiction to order service 6 by publication.”) (citing Harris, 68 Cal.App.3d at 726–27).3 7 2. Plaintiff Failed to Demonstrate Reasonable Diligence in Attempting Personal 8 Service on Defendant J.D. Florence. 9 As stated above, “[b]efore allowing a plaintiff to resort to service by publication, the courts 10 necessarily require [a plaintiff] to show exhaustive attempts to locate the defendant[.]” Watts, 10 11 Cal.4th at 749 n.5. The plaintiff has the burden of establishing “reasonable diligence” in attempting 12 service by other methods. Olvera, 232 Cal.App.3d at 42. 13 14 Here, Plaintiff’s motion contains no explanation of any attempts at service on Defendant 15 J.D. Florence, or any attempts to ascertain Defendant J.D. Florence’s address for service. (See Doc. 16 39.) The motion simply states: 17 Principal Life has attempted to serve Defendant Florence at his last known address. 18 Florence no longer lives at his last known address and no forwarding address was given. Principal Life has attempted to locate Defendant Florence and despite 19 reasonable diligence has been unable to locate a valid address or locate Defendant Florence. 20 21 (Doc. 39 at 1–2.) Plaintiff’s counsel’s declaration, attached to the motion, states that Plaintiff 22 attempted to serve Defendant J.D. Florence by mail and by Federal Express at his last known 23 address, and “[w]ithin the past 60 days . . . made attempts to locate a phone number or other address” 24 25 26 27 3 The Court notes that the fact that Defendant J.D. Florence is a named defendant in the complaint is insufficient for a finding that service by publication is appropriate. See Olvera v. Olvera, 232 Cal.App.3d 32, 42 (1991) (“The complaint, 28 although verified, was no substitute for the required affidavit, and the existence of a cause of action was a jurisdictional 1 2 must be made—and described in a motion for service by publication: 3 [A] thorough, systematic investigation and inquiry conducted in good faith . . . . A number of honest attempts to learn defendant’s whereabouts or address by inquiry of 4 relatives, friends, and acquaintances, or of an employer, and by investigation of appropriate city and telephone directories, the voters’ register, and the real and 5 personal property index in the assessor’s office, near the defendant’s last known 6 location, are generally sufficient. These are likely sources of information, and consequently must be searched before resorting to service by publication. 7 45 Cal. App. 4th at 1137–38 (emphasis added). Plaintiff must set forth specific facts establishing 8 that these efforts have been made to meet its burden to establish that service by publication is 9 10 justified. See Olvera, 232 Cal.App.3d at 42. 11 B. Plaintiff’s Motion is Denied Without Prejudice 12 Because the deficiencies in Plaintiff’s motion may be cured by further explanation, or by 13 further attempts at service of Defendant J.D. Florence and/or further attempts at ascertaining 14 Defendant J.D. Florence’s address for service, the motion will be denied without prejudice. 15 IV. CONCLUSION AND ORDER 16 1. Plaintiff’s Motion for Permission to Serve Defendant J.D. Florence by Publication, 17 18 (Doc. 39), is DENIED WITHOUT PREJUDICE. 19 2. The Court SETS an initial scheduling conference for February 13, 2020, at 9:45 20 a.m., in Courtroom 7 (SKO) before Magistrate Judge Sheila K. Oberto. The parties SHALL file 21 an updated joint scheduling report by no later than February 6, 2020. 22 23 IT IS SO ORDERED. 24 Sheila K. Oberto 25 Dated: December 23, 2019 /s/ . UNITED STATES MAGISTRATE JUDGE 26 27 28