Free Motion for Miscellaneous Relief - District Court of California - California

Case 5:07-cv-04507-JF

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Filed 02/08/2008

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1 ROBERT J. YORIO (SBN 93178) [email protected] 2 COLBY B. SPRINGER (SBN 214868) [email protected] 3 CHRISTINE S. WATSON (SBN 218006) [email protected] 4 CARR & FERRELL LLP 2200 Geng Road 5 Palo Alto, California 94303 Telephone: (650) 812-3400 6 Facsimile: (650) 812-3444 7 Attorneys for Plaintiff ACTICON TECHNOLOGIES LLC 8 9 10 11 12 13 ACTICON TECHNOLOGIES LLC, 14 15 v. Plaintiff, PLAINTIFF ACTICON TECHNOLOGIES LLC'S ADMINISTRATIVE MOTION FOR AUTHORIZATION TO SERVE COMPLAINT AND SUMMONS BY ALTERNATIVE MEANS AND EXTENSION OF TIME TO COMPLETE SERVICE CASE NO. C 07-4507 JF (HRL) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

16 PRETEC ELECTRONICS CORPORATION, a dissolved California corporation; PTI 17 GLOBAL, INC., a California corporation; CHIU FENG CHEN, an individual; GORDON 18 YU, an individual; TOMMY HO, an individual; ROBERT WU, an individual; GRACE YU, an 19 individual; KUEI LU, an individual; and DOES 1 through 20, 20 Defendants. 21 22 23 I.

INTRODUCTION

ACTICON filed the Complaint in this action on August 20, 2007. Therefore, pursuant to

24 Fed.R.Civ.P. 4(m), December 28, 2007 was the deadline for ACTICON to serve its Complaint and 25 Summons on all of the defendants in the case. On December 20, 2007, the Court extended the time 26 for ACTICON to complete service of process on certain defendants, including Defendant KUEI 27 LU, for an additional sixty (60) days, and authorized ACTICON to effect service on KUEI LU 28 through the combined alternative methods of (1) mailing the Complaint and Summons and (2) -1Plaintiff's Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL)

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1 leaving a copy of the Complaint and Summons at KUEI LU's last known residence. See Order 2 (Docket No. 47). 3 4 II. FACTS

On January 11, 2007, ACTICON completed service of the Complaint and Summons by the

5 authorized alternative methods on the individual who, based on the results of its investigation, 6 ACTICON believed to be Defendant KUEI LU. See Proof of Service of Process filed on January 7 16, 2008, (Docket No. 62). 8 On January 15, 2008, counsel for ACTICON was contacted by an individual who

9 represented herself to be one Kuei-Lan Margaret Lu and who was served with a copy of the 10 Summons and Complaint in this matter. See Declaration of Christine S. Watson ("Watson Decl."), 11 at ¶3. This individual represented to counsel for ACTICON orally and in writing that she is not the 12 KUEI LU named in the Complaint and that she has no affiliation with Defendants PRETEC 13 ELECTRONICS CORPORATION and PTI GLOBAL, INC. Id. 14 Although ACTICON has been unable to locate the residential address for the true Defendant

15 KUEI LU, ACTICON is informed that since 2006, KUEI LU has been, and continues to be, the 16 sole officer, director and one hundred percent owner of PTI GLOBAL, INC. See Answer of 17 Defendant PTI Global, Inc., dated January 8, 2008, at ¶¶ 20, 80 (Docket No. 59); see Joint Case 18 Management Statement dated January 17, 2008, at ¶¶ 5-19 (Docket No. 64). 19 20 A. 21 22 III. ARGUMENT

Service By Mail And Leaving A Copy Of The Complaint And Summons At Defendant PTI GLOBAL, INC.'s Corporate Address Meets Constitutional Due Process Requirements. Due process requires that "[t]he means employed [to effect service of process] must be such

23 as one desirous of actually informing the (defendant) might reasonably adopt to accomplish it." 24 Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 315. Due process does not 25 require, however, personal service in every case or that the method utilized is most likely to reach 26 the defendant. Green v. Lindsey (1982) 456 U.S. 444, 455. Rather, the method need only be 27 "reasonably likely" to provide notice of the proceedings involving the defendant's interests and an 28 opportunity to be heard. Id.; see also Mullane, 339 U.S. at 314. Moreover, "extraordinary" efforts -2Plaintiff's Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL)

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1 to locate a defendant are not required and a plaintiff must simply undertake reasonably diligent 2 efforts to locate a defendant. Mennonite Board of Missions v. Adams (1983) 462 U.S. 791, 798 3 (plaintiff need not hire a private investigator to locate the defendant). 4 In this case, ACTICON hired a private investigator to locate the individual defendants,

5 including Defendant KUEI LU. Despite ACTICON's diligent efforts, it has been unable to locate a 6 residential address for KUEI LU. However, KUEI LU is listed as Defendant PTI GLOBAL, INC.'s 7 agent for service of process and is the company's admitted one hundred percent owner and an 8 officer and director of the company. See California Secretary of State Web Page, attached as 9 Exhibit A to Watson Decl.; see also Statement of Information, dated December 5, 2006, attached as 10 Exhibit O to the Declaration of Christine Watson in support of Acticon's Ex Parte Application for 11 Temporary Restraining Order and Motion for Preliminary Injunction (Docket No. 9). ACTICON is 12 not constitutionally required to make extraordinary efforts exceeding those which it has already 13 diligently pursued. Service by mail addressed to KUEI LU, in care of PTI GLOBAL, INC., is an 14 appropriate and reasonable method of service based on the circumstances of this case. 15 16 17 B. The Circumstances Of This Case Render Personal Service As Set Forth In Fed.R.Civ.Proc. 4(e)(2) Impossible. "Strict compliance is required with the rules governing manner of service." Schwarzer,

18 Tashima & Wagstaffe, Cal.Prac.Guide, Federal Civil Procedure Before Trial, §5:166 (The Rutter 19 Group 2007). Federal Rule of Civil Procedure 4(e)(2) requires service of the complaint and 20 summons by delivering copies of the documents to the defendants personally or by leaving the 21 copies with persons of suitable age and discretion residing at the defendants' usual places of abode. 22 However, personal service on KUEI LU or leaving copies of the documents at her residence is 23 infeasible without conducting extraordinary investigations into her location, which ACTICON is 24 not required to do. 25 Since ACTICON is quite likely to be unable to personally serve the true Defendant KUEI

26 LU by the February 28, 2008 deadline imposed by the Court's Order dated December 20, 2007, 27 ACTICON respectfully requests authorization to serve Defendant KUEI LU by U.S. mail in an 28 envelope addressed to KUEI LU in care of PTI GLOBAL, INC. ACTICON also requests -3Plaintiff's Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL)

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1 authorization to serve Defendant KUEI LU by leaving a copy at PTI GLOBAL, INC.'s business 2 address, 231 Whitney Place, Fremont, California 94539, which is also the company's address for 3 service of process. 4 Given that KUEI LU is the sole officer, director and owner of PTI GLOBAL, INC. and that

5 she is the registered agent for service of process at the same address as PTI GLOBAL, INC.'s 6 corporate address, these alternative methods of service are reasonably likely to provide notice of 7 the proceedings involving her interests and an opportunity to be heard. While these combined 8 methods of service would satisfy due process, they do not satisfy the statutory requirements of 9 Fed.R.Civ.P. 4(e)(2), however, and as a result, ACTICON is required to seek relief from the Court. 10 11 IV. CONCLUSION

Based on the foregoing, ACTICON respectfully requests that the Court authorize

12 ACTICON to serve the Complaint and Summons in this action on Defendant KUEI LU by U.S. 13 mail addressed to PTI GLOBAL, INC. and by leaving a copy of the Complaint and Summons at 14 PTI GLOBAL, INC.'s address. 15 16 17 Dated: February 7, 2008 18 19 20 21 22 23 24 25 26 27 28 -4Plaintiff's Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL) By: /s/ Christine S. Watson ROBERT J. YORIO COLBY B. SPRINGER CHRISTINE S. WATSON Attorneys for Plaintiff ACTICON TECHNOLOGIES LLC Respectfully submitted,

CARR & FERRELL LLP