Hernandez v. Ballaj ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CODY HERNANDEZ, et. al., No. 2:23-cv-02965-DAD-SCR 12 Plaintiffs, 13 v. ORDER DENYING PLAINTIFFS’ MOTION FOR APPROVAL OF ALTERNATIVE 14 BALLAJ, doing business as KLARITY SERVICE METHOD, WITHOUT PREJUDICE KRATOM, 15 (Doc. No. 11) Defendant. 16 17 This matter is before the court on plaintiff Cody Hernandez’s ex parte motion for an order 18 authorizing service of defendant Ballaj by email to Ramond Takhsh, an attorney who represents 19 Ballaj in an unrelated matter pending before a different court. (Doc. No. 11.) On August 8, 2024, 20 plaintiff’s motion was taken under submission on the papers. (Doc. No. 12.) For the reasons set 21 forth below, plaintiff’s motion will be denied, without prejudice. 22 BACKGROUND 23 On December 19, 2023, plaintiffs filed a complaint initiating this putative class action 24 against defendant Ballaj, a California corporation, bringing state law claims under California’s 25 Unfair Competition Law, California Business and Professions Code §§ 17200, et seq.; California 26 Civil Code §§ 1750, et seq.; California’s False Advertising Law, California Business and 27 Professions Code §§ 17500, et seq.; and claims of breach of implied warranty, unjust enrichment, 28 fraud by omission, and negligent misrepresentation. (Doc. No. 1 at ¶¶ 7, 96–166.) On December 1 20, 2023, the court issued a summons as to defendant Ballaj. (Doc. No. 2.) 2 Plaintiffs’ counsel began attempting service on defendant Ballaj on December 26, 2023. 3 (Doc. No. 5 at 2.) On April 9, 2024, plaintiffs’ counsel filed a case management statement stating 4 they had attempted personal service on five different occasions (December 26, 2023; January 8, 5 2024; January 10, 2024; January 11, 2024; March 21, 2024) and had completed substituted 6 service on January 18, 2024. (Id.) On January 19, 2024, plaintiffs filed a returned executed 7 summons, reflecting that the person served was Nadeem Ballaj, the agent for service of process 8 for the party served: Ballaj d/b/a Klarity Kratom. (Doc. No. 4.) Specifically, the proof of service 9 attached to the returned summons executed reflects service by “[leaving the documents] on office 10 floor in the presence of Isieu Doe, office manager” at 12508 Center Street, South Gate, 11 California, 90280; and by mailing copies of the complaint and summons to that address. (Id.) 12 Nonetheless, defendant Ballaj did not appear in this action. According to plaintiff, the address 13 listed on the California Secretary of State’s website is outdated since that property appears to be 14 vacant, so plaintiff purportedly effected service at the Center Street address, which is the address 15 listed on defendant’s website KlarityKratom.com. (Doc. No. 5 at 2.) 16 Plaintiffs filed a further case management statement on July 9, 2024, stating that they had 17 made 17 separate attempts to serve defendant Ballaj. (Doc. No. 8 at 2.) These 11 additional 18 service attempts began on March 29, 2024 with attempted personal service at defendant’s place of 19 business. (Doc. No. 11 at 5.) This was followed by three personal service attempts at an address 20 believed to be the residence of Nadeem Ballaj, defendant Ballaj’s sole officer, on April 4, 5, and 21 7, 2024. (Doc. No. 11-1 at 77–78.) These personal service attempts purportedly involved the 22 server waiting for multiple hours at the address. (Id.) This was followed by five personal service 23 attempts on April 9, 10, 11, 14, and 15, 2024, at a different residence believed to belong to Mr. 24 Ballaj. (Id.) During one of these attempts, the server saw a car which was registered to Mr. 25 Ballaj in the driveway of the residence. (Id.) Substituted service was then performed on April 16 26 on an occupant of that residence and completed by mail the following day on April 17, 2024. (Id. 27 at 79.) Defendant Ballaj has not appeared in this action following these service attempts. (Doc. 28 No. 11 at 3.) 1 Plaintiff also has identified Ramond Takhsh as defendant’s counsel in an unrelated matter. 2 (Doc. No. 11 at 4); see Juarez v. Ballaj, No. 20-ST-CV-38388 (L.A. Cnty. Sup. Ct. 2020). 3 Plaintiff contacted attorney Takhsh multiple times, and he responded on May 20, 2024 that he 4 could accept service on behalf of defendant in this action. (Doc. No. 11 at 4.) On May 29, 2024, 5 plaintiff emailed a copy of the summons and complaint and a waiver of service form to attorney 6 Takhsh. (Id.) On July 1, 2024, attorney Takhsh called plaintiffs’ counsel, informing them that he 7 was not representing defendant in the matter before this court and that he was not authorized to 8 accept service on behalf of defendant. (Id.) Attorney Takhsh did not indicate when his 9 authorization to accept service was revoked. (Doc. No. 11-1 at 7.) 10 On August 7, 2024, plaintiff filed this ex parte motion to request an order authorizing 11 alternative service upon defendant pursuant to Federal Rule of Civil Procedure 4(f)(3) by 12 emailing the summons and complaint to attorney Takhsh. (Doc. No. 11.) 13 LEGAL STANDARD 14 Federal Rule of Civil Procedure Rule 4(h)(2) allows for service on a corporation “at a 15 place not within any judicial district of the United States” in the manner prescribed by Rule 4(f). 16 Fed. R. Civ. P. 4(h)(2). In turn, Rule 4(f)(3) allows a plaintiff to serve process by “means not 17 prohibited by international agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). 18 Federal Rule of Civil Procedure Rule 4(h)(1)(A) allows for service on a corporation “in a 19 judicial district of the United States in the manner prescribed by Rule 4(e)(1) for serving an 20 individual.” Fed. R. Civ. P. 4(h)(1)(A). In turn, Rule 4(e)(1) allows a plaintiff to serve process 21 by “following state law for serving a summons in an action brought in courts of general 22 jurisdiction in the state where the district court is located or where service is made; . . . .” Fed. R. 23 Civ. P. 4(e)(1). Federal Rule of Civil Procedure 4(h)(1)(B) allows for service on a corporation by 24 delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by 25 appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also 26 mailing a copy of each to the defendant; . . . . 27 Fed. R. Civ. P. 4(h)(1)(B). 28 ///// 1 As for state law in the district where this court is located, California Code of Civil 2 Procedure §§ 415.10, 415.20, 415.30, and 415.50 provide the rules for personal service, substitute 3 service, service by mail, and service by publication, whereas §§ 416.10 and 416.20 provide the 4 rules governing service on a corporation. In addition to delivery to a designated agent, § 416.10 5 provides that a summons may be served on a corporation “[t]o the president, chief executive 6 officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a 7 treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a 8 person authorized by the corporation to receive service of process.” Cal. Civ. Proc. Code 9 § 416.10(b). California Code of Civil Procedure § 413.30 provides that, where no other law 10 provides for the service of summons, the court may allow service in a manner “which is 11 reasonably calculated to give actual notice to the party to be served and that proof of such service 12 be made as prescribed by the court.” Cal. Civ. Proc. Code § 413.30. 13 ANALYSIS 14 As a preliminary matter, because plaintiffs are seeking to serve a corporate defendant 15 within a judicial district of the United States, service must be completed pursuant to Federal Rule 16 of Civil Procedure 4(h)(1), not Rule 4(f)(3), which provides for service outside of the United 17 States. Notably here, the addresses at which plaintiffs have attempted service are all located in 18 California, not outside the United States. (See Doc. No. 11 at 5–6.) Thus, Rule 4(f)(3)—the 19 provision invoked by plaintiffs in their motion—simply does not apply. The court will therefore 20 analyze plaintiffs’ request by applying Rule 4(h)(1). 21 In the pending motion, plaintiffs seek to serve defendant by emailing the summons and 22 complaint to defendant’s counsel in an unrelated state court action because their repeated attempts 23 to serve defendant otherwise have been unsuccessful. (Doc. No. 11.) Having reviewed plaintiff’s 24 supporting documentation, the court finds that plaintiffs have demonstrated that they have made 25 reasonably diligent efforts to provide personal service to defendant’s sole officer, Mr. Ballaj, and 26 have been unable to effect service. In particular, after plaintiffs concluded that the address 27 provided for defendant’s agent for service of process is outdated (apparently a vacant property), 28 (Doc. No. 5 at 2), plaintiffs then attempted follow-up service at other known addresses for Mr. 1 Ballaj, both through substituted service and through personal delivery. (Doc. No. 11 at 5–6.) 2 Counsel for plaintiff has provided a declaration with exhibits detailing the activities of service 3 processers that they had hired and of their communication with defendant’s counsel in the 4 unrelated state court action regarding service. (Doc. No. 11-1 at 2–3.) In light of the alleged 5 incorrect address for defendant and the manifest difficulty of the service processers in 6 effectuating service, the court finds that the summons and complaint cannot be served, despite the 7 exercise of reasonable diligence, on defendant’s designated agent by personal service, substitute 8 service, or service by mail with acknowledgment of receipt in the manner provided in California 9 Code of Civil Procedure §§ 415.10, 415.20(a), 415.30(a). Nor can service be effected on the 10 defendant corporation in the manner provided in California Code of Civil Procedure § 416.10(a), 11 which authorizes service on the “person designated as agent for service of process.” Cal. Civ. 12 Proc. Code § 416.10(a). 13 However, there are other provisions of California law that provide for service of the 14 summons and complaint on a defendant under these circumstances. California Code of Civil 15 Procedure § 415.50(a) allows for service by publication if the party to be served cannot “with 16 reasonable diligence be served in another manner” and that “a cause of action exists against the 17 party upon whom service is to be made or he or she is a necessary or proper party to the action.” 18 Cal. Civ. Proc. Code § 415.50(a). Moreover, California Corporations Code § 1702(a) provides 19 another alternative means of service by permitting an application for a court order that service be 20 made by hand delivery of the summons and complaint to the California Secretary of State: 21 If an agent for the purpose of service of process has resigned and has not been replaced or if the agent designated cannot with reasonable 22 diligence be found at the address designated for personally delivering the process, or if no agent has been designated, and it is shown by 23 affidavit to the satisfaction of the court that process against a domestic corporation cannot be served with reasonable diligence 24 upon the designated agent by hand in the manner provided in Section 415.10, subdivision (a) of Section 415.20 or subdivision (a) of 25 Section 415.30 of the Code of Civil Procedure or upon the corporation in the manner provided in subdivision (a), (b) or (c) of 26 Section 416.10 or subdivision (a) of Section 416.20 of the Code of Civil Procedure, the court may make an order that the service be 27 made upon the corporation by delivering by hand to the Secretary of State, or to any person employed in the Secretary of State’s office in 28 the capacity of assistant or deputy, one copy of the process for each 1 defendant to be served, together with a copy of the order authorizing such service. 2 3 | Cal. Corp. Code § 1702(a). In light of these provisions, the court cannot grant plaintiffs’ request 4 | that they be allowed to serve defendant by emailing counsel who is representing defendant Ballaj 5 | in an unrelated state court action based on § 413.30. This is because plaintiff has failed to show 6 | that there are no other provisions which will allow service to be reasonably effected. See, e.g., 7 || Federal Ins. Co. v. Caldera Medical, Inc., No. 2:15-cv-00393-SVW-PJW, 2015 WL 12655601, at g | *2-3 (C.D. Cal. 2015). 9 CONCLUSION 10 For the reasons explained above, plaintiff's ex parte motion to serve defendant by serving 11 | defendant’s counsel (Doc. No. 11) is denied, without prejudice. 12 IT IS SO ORDERED. 'S | Dated: _ September 20, 2024 □□□ A. 2, yel 14 DALE A. DROZD Is UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28