Board of Trustees of the Southern Nevada and California Glaziers, Fabricators, Painters and Floorcoverers Pension Trust Fund v. Scoutlite Corporation ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Board of Trustees of the Southern Nevada Case No. 2:24-cv-01059-RFB-DJA 6 and California Glaziers, Fabricators, Painters and Floorcoverers Pension Trust 7 Fund, Order 8 Plaintiff, 9 v. 10 Scoutlite Corporation, a California corporation; Western Surety Company, a South Dakota 11 corporation; et al., 12 Defendants. 13 14 This is a breach of contact action arising out of labor agreements under which Defendant 15 Scoutlite Corporation was required to pay Plaintiff—the Board of Trustees of the Southern 16 Nevada and California Glaziers, Fabricators, Painters and Floorcoverers Pension Trust Fund—to 17 fund employee benefits.1 Plaintiff moves to serve Scoutlite by alternative means and to extend 18 the time for service. (ECF No. 5). Because the Court finds that Plaintiff’s proposed alternative 19 service methods are reasonably calculated to provide Scoutlite with notice and an opportunity to 20 respond, it grants the motion. 21 I. Legal standard. 22 The Constitution does not require any particular means of service of process. Rio Props., 23 Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1017 (9th Cir. 2002) (citing Mullane v. Central 24 Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). It requires only that service “be 25 reasonably calculated to provide notice and an opportunity to respond.” Id. Service of process is 26 27 1 Plaintiff represents that it and Defendant Western Surety Company have reached a settlement in this matter, and the instant motion only involves Scoutlite, so the Court does not outline 1 governed by Rule 4 of the Federal Rules of Civil Procedure. A federal court lacks jurisdiction 2 over a defendant unless the defendant has been properly served under Rule 4. Direct Mail 3 Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citation 4 omitted). Rule 4, however, “is a flexible rule that should be liberally construed so long as a party 5 receives sufficient notice of the complaint.” Id. “[W]ithout substantial compliance with Rule 4,” 6 “neither actual notice nor simply naming the defendant in the complaint will provide personal 7 jurisdiction.” Id. 8 Federal Rule of Civil Procedure 4(h) provides that a corporation, partnership, or 9 association located in a judicial district of the United States may be served in the manner 10 prescribed by Rule 4(e)(1) for serving an individual2 or by delivering a copy of the summons and 11 of the complaint to an officer, a managing or general agent, or any other agent authorized by law 12 to receive service of process. Under the California Code of Civil Procedure, California 13 corporations may be served, in relevant part, by delivering a copy of the summons and complaint 14 to an agent designated for service of process; the chief executive officer, a secretary, or a chief 15 financial officer. See Cal. Code. Civ. P. § 416.10. California law also authorizes service of the 16 summons and complaint by first class or airmail, postage prepaid, with a return envelope, postage 17 prepaid. Cal. Code. Civ. P. § 415.30(a).3 18 Under California law, when a plaintiff cannot with “reasonable diligence” locate a 19 defendant’s designated agent or any other person authorized to receive service, California 20 Corporations Code § 1702(a) permits an application for a court order that service be made by 21 hand delivery of the summons and complaint to the California Secretary of State. Pension Benefit 22 23 24 2 Federal Rule of Civil Procedure 4(e)(1) provides that an individual within a judicial district of 25 the United States may be served by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where 26 service is made.” 27 3 Service is complete by this method when a written acknowledgement of receipt of summons is executed, if such acknowledgement thereafter is returned to the sender. Arias v. BL Custom 1 Guar. Corp. v. Ward Tech. Prod., Inc., No. 2:22-CV-02312-DAD-DB, 2023 WL 2958009, at *1 2 (E.D. Cal. Apr. 14, 2023). That rule provides that, 3 if the agent designated cannot with reasonable diligence be found at the address designated for personally delivering the process…and it 4 is shown by affidavit to the satisfaction of the court that process 5 against a domestic corporation cannot be served with reasonable diligence upon the designated agent by hand in the manner provided 6 in Section 415.10 [personal service], subdivision (a) of Section 415.20 [personal service at an office or mailing address on a person 7 in charge along with service by mail] or subdivision (a) of Section 415.30 [service by first class or airmail, postage prepaid, return 8 requested] of the Code of Civil Procedure or upon the corporation 9 in the manner provided in subdivision (a), (b), or (c) of Section 416.10 [personal service on a corporation’s officers or registered 10 agent] or subdivision (a) of Section 416.20 [personal service on a corporation’s trustee] of the Code of Civil Procedure, the court may 11 make an order that the service be made upon the corporation by delivering by hand to the Secretary of State, or to any person 12 employed in the Secretary of State’s office in the capacity of 13 assistant or deputy, one copy of the process for each defendant to be served, together with a copy of the order authorizing such service. 14 15 Cal. Corp. Code. § 1702(a). 16 As a condition precedent to the issuance of an order for such substituted service, a 17 plaintiff’s affidavit must establish that the corporation cannot be served with the exercise of due 18 diligence in any other manner provided by law. Pension Benefit, 2023 WL 2958009, at *2. 19 II. Discussion. 20 Plaintiff explains that it has attempted to serve Scoutlite by both personal service 21 (consistent with California Code of Civil Procedure §§ 415.10 and 416.10) and service via mail, 22 return receipt requested (consistent with California Code of Civil Procedure § 415.30(a)). (ECF 23 No. 5 at 3-4). Plaintiff explains that Scoutlite’s registered agent is listed as Cynthia E. Gardner, 24 its chief executive officer is listed as Jeffrey David Shannon, and its secretary/chief financial 25 officer is listed as Vonny Shannon. (Id.). 26 Plaintiff represents that the addresses it could find for Scoutlite include the following: 27 • P.O. Box 1651, Yucaipa, CA 92399 1 • 1904 Riverview Dr. Ste. 114, San Bernadino, CA 92408 2 • 1442 S. Gage St., San Bernadino, CA 92408 3 (Id.). 4 Plaintiff represents that the address it could find for Gardner includes the following: 5 • 34639 Boros Blvd., Beaumont, CA 92223 6 (Id.). 7 Plaintiff represents that the addresses it could find for Jeffrey David Shannon include the 8 following: 9 • 12339 Bryant St., Yucaipa, CA 92399 10 • 1904 Riverview Dr. Ste. 114, San Bernadino, CA 92408 11 • 1442 S. Gage St., San Bernadino, CA 92408 12 (Id.). 13 Plaintiff represents that the address it could find for Vonny Shannon includes the 14 following: 15 • 12339 Bryant St., Yucaipa, CA 92399 16 (Id.). 17 Plaintiff attempted personal service at the Boros address, the Bryant address, and the Gage 18 address. (Id. at 26-28). The process server noted that there was movement inside at the Boros 19 and Bryant addresses, but no answer. (Id. at 26, 27). The process server noted that the Gage 20 address was no longer a good address because Scoutlite had moved out and a sandblasting 21 company now occupies the space. (Id. at 28). Plaintiff did not attempt personal service on the 22 Riverview address. Plaintiff also attempted service by first class mail, postage prepaid on the 23 Boros address, the Bryant address, the P.O. Box address, and the Riverview address. (Id. at 4). 24 However, after waiting twenty days, Plaintiff received no acknowledgement of receipt. Plaintiff 25 did not attempt service by mail on the Gage address. (Id. at 5). Plaintiff asks the Court for 26 additional time to attempt service by mail at the Gage address. (Id.). Plaintiff also asks that, if 27 service by mail is unsuccessful, the Court allow Plaintiff to serve Scoutlite via the California 1 Here, the Court finds that Plaintiff has been diligent in attempting to serve Scoutlite and 2 will thus grant Plaintiff’s motion in part and deny it in part. The Court denies the motion in part 3 only to add an additional requirement. Along with attempting to serve Scoutlite via first class 4 mail, return receipt requested at the Gage address, Plaintiff must also attempt personal service at 5 the Riverview address. If these methods of service are unsuccessful, Plaintiff may attempt 6 service via the California Secretary of State as outlined in California Corporations Code 7 § 1702(a). 8 9 IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to make alternative 10 service of process on Defendant Scoutlite Corporation (ECF No. 5) is granted in part and 11 denied in part. It is denied in part only to the extent that the Court adds the requirement that 12 Plaintiff attempt personal service on Scoutlite at the Riverview address before attempting service 13 via the California Secretary of State. It is granted in all other respects. 14 IT IS FURTHER ORDERED that the Federal Rule of Civil Procedure 4(m) deadline for 15 Plaintiff to effectuate service is extended to November 11, 2024. 16 IT IS FURTHER ORDERED that Plaintiff must attempt service on Scoutlite by the 17 following methods: 18 • Service by first class mail or airmail, postage prepaid, with return envelope, 19 postage prepaid to Scoutlite Corporation at 1442 S. Gage St., San Bernadino, CA 20 92408 as provided by California Code of Civil Procedure § 415.30. 21 • Personal service to Scoutlite Corporation at 1904 Riverview Dr. Ste. 114, San 22 Bernadino, CA 92408 as provided in California Code of Civil Procedure § 415.10 23 and § 416.10. 24 25 26 /// 27 /// 1 IT IS FURTHER ORDERED that if the above methods of service are unsuccessful, 2 Plaintiff may attempt service on Scoutlite via the California Secretary of State as provided in 3 California Corporations Code § 1702(a). 4 5 DATED: September 16, 2024 6 DANIEL J. ALBREGTS 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27