Dodo International Inc v. Parker ( 2021 )

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 DODO INTERNATIONAL, INC., et al., CASE NO. C20-1116-JCC 10 Plaintiffs, ORDER 11 v. 12 RICHARD PARKER, et al., 13 Defendants. 14 15 This matter comes before the Court on Plaintiffs’ motions seeking the Court’s leave to 16 serve several defendants by mail. (See Dkt. Nos. 24–29.) Having thoroughly considered the 17 motions and the relevant record, the Court hereby GRANTS the motion with respect to Eugene 18 Elfrank (Dkt. No. 25) and DENIES the motions with respect to the other defendants (Dkt. Nos. 19 24, 26, 27, 28, 29). 20 I. BACKGROUND 21 This case involves a contract dispute regarding purchase and sale agreements for 22 cannabidiol isolate. (Dkt. No. 41 at 6.) Plaintiffs previously sought the Court’s permission to 23 serve Defendants Isotex Health, LLC, Jason Cross, Eugene Elfrank, Richard Parker, and 24 Alternative Resource, Inc. by mail and e-mail (Dkt. Nos. 8, 14, 15.) The Court denied those 25 motions because Plaintiffs did not cite authority showing they were entitled to the requested 26 relief. (Dkt. No. 21 at 1.) On October 28, 2020, Plaintiffs requested the Court’s leave to serve the 1 following Defendants by mail: Cypress Creek Ventures, LLC, Eugene Elfrank, Isotex Health, 2 LLC, Jason Cross, Richard Parker, and Samuel Adams. (Dkt. Nos. 24–29.) 3 II. DISCUSSION 4 A. Legal Standard 5 A plaintiff may serve a defendant in the United States by “following state law for serving 6 a summons in an action brought in courts of general jurisdiction in the state where the district 7 court is located or where service is made.” Fed. R. Civ. P. 4(e)(1). Here, Plaintiffs seek to 8 proceed under Washington law. Under Washington law, the Court may not authorize service by 9 mail unless Plaintiffs show that they made reasonably diligent efforts to personally serve 10 Defendants, that service by publication would be justified under Washington law, and that 11 Defendants are as likely to receive actual notice from service by mail as they would from service 12 by publication. Wash. Sup. Ct. Civ. R. 4(d)(4); Charboneau Excavating, Inc. v. Turnipseed, 75 13 P.3d 1011, 1014 (Wash. Ct. App. 2003). 14 Washington permits service by publication in limited circumstances. See Wash. Rev. 15 Code § 4.28.100. For example, service by publication is permitted when a Washington resident 16 “keeps himself or herself concealed” within the state with the intent to “avoid the service of a 17 summons.” Wash. Rev. Code § 4.28.100(2); see also Pascua v. Heil, 108 P.3d 1253, 1257 18 (Wash. App. 2005) (service by mail is permissible upon Washington residents when they are 19 attempting to evade service). Service by publication is also permitted when a nonresident 20 defendant “has property [within Washington] and the court has jurisdiction of the subject of the 21 action,” Wash. Rev. Code § 4.28.100(3), and when the action is against a corporation “and the 22 proper officers on whom to make service do not exist or cannot be found,” Wash. Rev. Code 23 § 4.28.100(8). 24 1. Defendants Cypress Creek Ventures, LLC and Samuel Adams 25 Plaintiffs request to serve Defendants Cypress Creek Ventures, LLC (“Cypress Creek”) 26 and Samuel Adams by mail. (Dkt. Nos. 24, 29.) Plaintiffs allege that Samuel Adams was the 1 managing partner for Cypress Creek and seek to serve Cypress Creek and Samuel Adams at a 2 UPS Store in Kirkland, Washington. (See Dkt. Nos. 41 at 3, 24 at 2–3, 29 at 2–3.) 3 Plaintiffs fail to establish that serving Samuel Adams by mail is permissible under 4 Washington law. First, Plaintiffs fail to show they made reasonably diligent efforts to serve 5 Samuel Adams. “[W]here a plaintiff possesses information that might reasonably assist in 6 determining a defendant’s whereabouts, but fails to follow up on that information, the plaintiff 7 has not made the honest and reasonable effort necessary to allow for service by publication.” 8 Boes v. Bisiar, 94 P.3d 975, 978–79 (Wash. Ct. App. 2004) (quoting Brenner v. Port of 9 Bellingham, 765 P.2d 1333, 1336 (Wash. Ct. App. 1989)). Here, Plaintiffs allege that Samuel 10 Adams is domiciled in Spokane, Washington, but their affidavits do not show that Plaintiffs 11 made any effort to locate and serve Samuel Adams in Spokane. (Dkt. No. 41 at 3.) Therefore, 12 Plaintiffs have not shown reasonably diligent efforts to serve him personally. See Parkash v. 13 Perry, 700 P.2d 1201, 1203 (Wash. Ct. App. 1985) (finding inadequate showing of due diligence 14 where plaintiff did not demonstrate efforts to contact defendant’s employer or investigate 15 neighbor’s statement that defendant had moved); Canal Ins. Co. v. Mengeste, 2019 WL 2491951, 16 slip op. at 2 (W.D. Wash. 2019) (finding failure to show reasonably diligent effort where 17 plaintiff did not demonstrate efforts to locate and serve defendant in Ethiopia after learning of his 18 relocation). Second, Plaintiffs fail to demonstrate the “circumstances justifying service by 19 publication.” Wash. Sup. Ct. Civ. R. 4(d)(4); see also Wash. Rev. Code § 4.28.100 (listing 20 circumstances); Boes, 94 P.3d at 979–80 (“The affidavit must clearly articulate facts to meet the 21 required conditions . . . .”). The Court therefore DENIES Plaintiffs’ motion for leave to serve 22 Samuel Adams by mail (Dkt. No. 29). 23 The Court also DENIES Plaintiffs’ motion to serve Cypress Creek by mail (Dkt. No. 24) 24 because Plaintiffs have not demonstrated the “circumstances justifying service by publication” 25 under Washington Superior Court Civil Rule 4(d)(4). Washington provides an alternative route 26 for Plaintiffs to serve an LLC’s registered agent by mail without the Court’s prior authorization, 1 but Plaintiffs may do so only if they have been unable to serve the LLC’s registered agent with 2 reasonable diligence. See Wash. Rev. Code §§ 25.15.026; 23.95.450(2). 3 2. Defendant Eugene Elfrank 4 A process server attempted to personally serve Defendant Eugene Elfrank six times at his 5 last known address in Clinton, Washington. (Dkt. No. 25 at 6.) The process server declares that 6 during some of the service attempts, vehicles registered to Mr. Elfrank were present and 7 somebody was inside the residence, but nobody answered the door. (Id. at 6–7) This affidavit 8 shows that Plaintiffs have made diligent efforts to serve Eugene Elfrank, that Mr. Elfrank is a 9 Washington resident, and that he is attempting to evade service of process. The Court therefore 10 GRANTS Plaintiffs’ motion for leave to serve Eugene Elfrank by mail (Dkt. No. 25). Plaintiffs 11 must follow Washington Superior Court Civil Rule 4(d)(4) in serving Mr. Elfrank. 12 3. Defendants Isotex Health, LLC and Jason Cross 13 Plaintiffs also request to serve Isotex Health, LLC and Jason Cross by mail. (Dkt. Nos. 14 26, 27.) Plaintiffs attempted to serve Isotex Health, LLC by serving Jason Cross at his Texas 15 residence, and the process server in Texas believes that Jason Cross is actively evading service. 16 (Dkt. Nos. 26 at 5, 27 at 5.) However, Washington law does not permit service by publication 17 under these circumstances. See Wash. Rev. Code § 4.28.100. Service by publication is available 18 when a Washington resident evades service, Wash. Rev. Code § 4.28.100(2), but Jason Cross is 19 not a Washington resident, (see Dkt. Nos. 26 at 2, 27 at 2). Service by publication is also 20 available when a nonresident defendant has property in Washington and the court has subject- 21 matter jurisdiction in the action, but Plaintiffs fail to establish those circumstances here. See 22 Wash. Rev. Code § 4.28.100(3). Plaintiffs must show either that Washington law allows service 23 by mail or that Texas law does. See Fed. R. Civ. P. 4(e)(1) (permitting service pursuant to state 24 law “in the state where the district court is located or where service is made”). Plaintiffs have not 25 done so for either Isotex Health, LLC or Jason Cross. Accordingly, the Court DENIES Plaintiffs’ 26 motions for leave to serve these defendants by mail (Dkt. Nos. 26, 27). 1 4. Defendant Richard Parker 2 Plaintiffs unsuccessfully attempted to serve Richard Parker at an address in Irvine, 3 California. (Dkt. No. 28 at 5.) Plaintiffs allege that the process server communicated with the 4 building’s property manager, who confirmed that Richard Parker no longer resides at that 5 address, but the process server’s declaration does not include this information and Plaintiffs do 6 not include any other affidavit that does. (See id. at 2.) Even if the Court were to consider this 7 information, Plaintiffs have failed to demonstrate the “circumstances justifying service by 8 publication.” Wash. Sup. Ct. Civ. R. 4(d)(4); see also Wash. Rev. Code § 4.28.100 (listing 9 circumstances); Boes, 94 P.3d at 979–80 (“The affidavit must clearly articulate facts to meet the 10 required conditions . . . .”). Plaintiffs must show either that Washington law allows service by 11 mail or that the law “where service is made” does. See Fed. R. Civ. P. 4(e)(1). Plaintiffs have 12 failed to do so. Accordingly, the Court DENIES Plaintiffs’ motion for leave to serve Richard 13 Parker by mail (Dkt. No. 28). 14 III. CONCLUSION 15 For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for leave to serve 16 Eugene Elfrank by mail (Dkt. No. 25) and DENIES Plaintiffs’ motions for leave to serve 17 Cypress Creek Ventures, LLC, Isotex Health, LLC, Jason Cross, Richard Parker, and Samuel 18 Adams by mail (Dkt. Nos. 24, 26, 27, 28, 29). Plaintiffs must follow Washington Superior Court 19 Civil Rule 4(d)(4) in serving Eugene Elfrank. 20 21 DATED this 19th day of February 2021. A 22 23 24 John C. Coughenour 25 UNITED STATES DISTRICT JUDGE 26