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

Case 5:07-cv-04507-JF

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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 24 25 26 27 28

Plaintiff's Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL)

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I.

INTRODUCTION

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

3 Fed.R.Civ.P. 4(m), December 28, 2007 is the deadline for ACTICON to serve its Complaint and 4 Summons on all of the defendants in the case. 5 Since filing the Complaint, ACTICON has been able to serve two of the eight defendants1 in

6 this action: Defendant PTI GLOBAL, INC. and Defendant GRACE YU. Based on the remaining 7 defendants' actions to evade service of process and due to the unknown whereabouts of four of the 8 remaining defendants, ACTICON has been prevented from serving the Complaint and Summons on 9 the remaining defendants. 10 Under the circumstances, ACTICON respectfully requests that the Court extend the time to

11 complete service of process for sixty (60) days and to authorize ACTICON to effect service on the 12 Defendants CHIU FENG CHEN, KUEI LU and GORDON YU through the combined alternative 13 methods of (1) mailing the Complaint and Summons and (2) leaving a copy of the Complaint and 14 Summons at the these defendants' last known residences and to effect service on Defendants 15 TOMMY HO and ROBERT WU by mailing the Complaint and Summons to PTI GLOBAL, INC. 16 or by publication. As discussed below, given the facts of this case, these alternative methods to 17 personal service are sufficient to comply with the due process requirement that a method of service 18 must be likely to result in the defendant receiving actual notice. See Mullane v. Central Hanover 19 Bank & Trust Co., (1950) 339 U.S. 306, 314-315 (due process requires that "notice [be] reasonably 20 calculated, under all the circumstances, to appraise interested parties of pendency of the action and 21 afford them opportunity to present their objections") (emphasis added). 22 23 II. FACTS

ACTICON served Defendant PTI GLOBAL, INC. with the Complaint and Summons on

24 October 5, 2007, through personal service on Chi-Lin Tom, PTI GLOBAL, INC.'s General 25 Manager. See Proof of Service of Process, attached as Exhibit B to the Declaration of Christine 26 Watson ("Watson Decl."). With the assistance of a private investigator, ACTICON located the 27
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Defendant PRETEC ELECTRONICS CORPORATION is a dissolved corporation. Exhibit F to Complaint (Docket No. 1). -1Plaintiff's Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL)

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1 residential addresses for three defendants, GRACE YU, KUEI LU and CHIU FENG CHEN. 2 Watson Decl., at ¶4. On November 12, 2007, ACTICON served Defendant GRACE YU by 3 substitute service at her admitted home address, 40250 San Sebastian Place, Fremont, California 4 945392. See Declaration Re: Due Diligence for Grace Yu ("Yu Decl."), attached as Exhibit B to 5 the Watson Decl.; see also Declaration of Grace Yu in Support of Motion to Dismiss, at ¶¶4, 5 6 (Docket No. 38). 7 Although ACTICON located a residential address for Defendant KUEI LU, this defendant

8 has evaded ACTICON's multiple service attempts. Eleven attempts were made to serve KUEI LU 9 at her address between the dates of October 5, 2007 and November 18, 2007. See Declaration Re: 10 Due Diligence for Kuei Lu ("Lu Decl."), attached as Exhibit C to the Watson Decl. On the second 11 service attempt at KUEI LU's residence, KUEI LU's son answered the door. Id. Subsequently, on 12 each of the nine further attempts to serve KUEI LU, the defendant and the occupants of her 13 residence refused to answer the door even though on at least five of those occasions, multiple cars 14 were parked outside the residence, which suggests that the house was occupied. See id. 15 In addition, ACTICON located a residential address for Defendant CHIU FENG CHEN,

16 however, this defendant allegedly no longer resides at that address. See Declaration Re: Due 17 Diligence for Chiu Feng Chen ("Chen Decl."), attached as Exhibit D to the Watson Decl. Three 18 attempts were made to serve Defendant CHIU FENG CHEN at the same residential address. See 19 Chen Decl. On the second attempt, the process server was informed by the occupant of the 20 apartment unit that CHIU FENG CHEN was a former tenant of the unit. See Chen Decl. 21 ACTICON does not possess any other residential address for CHIU FENG CHEN. Watson Decl., 22 at ¶6. 23 The remaining defendants are individuals who include TOMMY HO, ROBERT WU and

24 GORDON YU and for whom ACTICON has been unable to locate contact or residence 25 information. ACTICON believes that GORDON YU is related to Defendant GRACE YU through 26 a marital, familial or other close relationship since the two defendants share the same last name, 27
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Defendant YU filed a motion to dismiss based on insufficient service of summons on December 3, 2007, which is scheduled to be heard before this Court on January 25, 2008. -2Plaintiff's Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL)

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1 were both listed as officers of Pretec Electronics Corporation and have both resided ­ and may 2 continue to reside ­ at the same address, 40250 San Sebastian Place, Fremont, California 94539, 3 which GRACE YU admits is currently her residential address. See Declaration of Grace Yu, at ¶5 4 (Docket No. 38); see Statement of Information dated June 20, 2005, attached as Exhibit E to the 5 Watson Decl. 6 7 A. 8 9 III. ARGUMENT

Service By Publication, Mail Or Leaving A Copy Of The Complaint And Summons At The Remaining Defendants' Respective Last Known Addresses Meets Constitutional Due Process Requirements. Due process requires that "[t]he means employed [to effect service of process] must be such

10 as one desirous of actually informing the (defendant) might reasonably adopt to accomplish it." 11 Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 315. Due process does not 12 require, however, personal service in every case or that the method utilized is most likely to reach 13 the defendant. Green v. Lindsey (1982) 456 U.S. 444, 455. Rather, the method need only be 14 "reasonably likely" to provide notice of the proceedings involving the defendant's interests and an 15 opportunity to be heard. Id.; see also Mullane, 339 U.S. at 314. Moreover, "extraordinary" efforts 16 to locate a defendant are not required and a plaintiff must simply undertake reasonably diligent 17 efforts to locate a defendant. Mennonite Board of Missions v. Adams (1983) 462 U.S. 791, 798 18 (plaintiff need not hire a private investigator to locate the defendant). 19 In this case, ACTICON hired a private investigator to locate the individual defendants. Of

20 the three individual defendants ACTICON succeeded in locating, ACTICON has only been able to 21 serve one of them, GRACE YU. Defendant KUEI LU has been evading service as demonstrated in 22 Section II above and CHIU FENG CHEN is allegedly no longer residing at the apartment last 23 known to be this defendant's address. ACTICON is not constitutionally required to make 24 extraordinary efforts exceeding those which it has already diligently pursued. Service by mail is an 25 appropriate and reasonable method of service based on the circumstances of this case. 26 27 28 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, -3Plaintiff's Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL)

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1 Tashima & Wagstaffe, Cal.Prac.Guide, Federal Civil Procedure Before Trial, §5:166 (The Rutter 2 Group 2007). Federal Rule of Civil Procedure 4(e)(2) requires service of the complaint and 3 summons by delivering copies of the documents to the defendants personally or by leaving the 4 copies with persons of suitable age and discretion residing at the defendants' usual places of abode. 5 However, with respect to Defendants TOMMY HO and ROBERT WU, personal service or leaving 6 copies of the documents at their respective residences has been made impossible without 7 conducting extraordinary investigations into their locations, which ACTICON is not required to do. 8 ACTICON requests authorization to serve Defendants TOMMY HO and ROBERT WU by

9 U.S. mail in envelopes addressed to the Defendants in care of PTI GLOBAL, INC. Both 10 defendants were officers or directors of PRETEC ELECTRONICS CORPORATION and PTI 11 GLOBAL, INC., which is the alleged successor corporation to PRETEC ELECTRONICS 12 CORPORATION and which is believed to be located at PRETEC ELECTRONICS 13 CORPORATION's pre-dissolution address. ACTICON also requests authorization to serve 14 Defendants TOMMY HO and ROBERT WU by publication, as permitted by Fed.R.Civ.P. 4(e)(1) 15 and California Code of Civil Procedure §415.50. While this method of service would satisfy due 16 process, it does not satisfy the statutory requirements of Fed.R.Civ.P. 4(e)(2), however, and as a 17 result, ACTICON is required to seek relief from the Court. 18 In addition, Defendant KUEI LU's persistent evasion of process as demonstrated by her and

19 her family's refusal to answer the door on nine separate service attempts after receiving notice that 20 the process server was trying to locate her makes personal service or service on a person of suitable 21 age and discretion residing at her home virtually impossible. 22 Finally, ACTICON recently discovered that Defendant GORDON YU's address as of June

23 20, 2005, was 40250 San Sebastian Place, Fremont, California 94539, which is the admitted 24 residential address of GRACE YU. See Exhibit E to the Watson Decl.; see Watson Decl., at ¶7. 25 Consequently, ACTICON requests that service of the Complaint and Summons on GORDON YU 26 through the alternative methods of mailing and leaving a copy at the 40250 San Sebastian Place 27 address be permitted. 28 -4Plaintiff's Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL)

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IV.

CONCLUSION

Based on the foregoing, ACTICON respectfully requests that the Court extend the time to

3 complete service of process for sixty days and authorize ACTICON to serve the Complaint and 4 Summons in this action on Defendants CHIU FENG CHEN, KUEI LU and GORDON YU by U.S. 5 mail and by leaving a copy of the Complaint and Summons at the last known addresses for these 6 defendants. In addition, ACTICON requests that the Court authorize ACTICON to serve the 7 Complaint and Summons in this action on Defendants TOMMY HO and GORDON YU by mail to 8 PTI GLOBAL, INC.'s address and by publication. 9 10 11 Dated: December 18, 2007 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5Plaintiff'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

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