Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IAN KINDERMANN, an Individual, Case No.: 3:25-cv-00016-CAB-SBC 12 Plaintiff, ORDER ON DEFENDANT MERZ 13 v. NORTH AMERICA, INC.’S BRIEF IN SUPPORT OF ITS REQUEST 14 MERZ NORTH AMERICA, INC., a FOR PERMISSION AUTHORIZING North Carolina Corporation; and 15 ALTERNATIVE SERVICE OF DOES 1 to 50, DEPOSITION SUBPOENAS 16 Defendants. 17 18 I. INTRODUCTION 19 Defendant Merz North America, Inc., requests permission to serve by e-mail, 20 deposition subpoenas on two non-parties and former employees of Merz—Mikayla Harts 21 and Susan Grant. (Dkt. No. 38.) For the reasons stated below, the motion is GRANTED. 22 II. PROCEDURAL HISTORY 23 At the Initial Discovery Dispute Conference held on February 26, 2026, Defendant 24 requested the Court to serve deposition subpoenas on Mikayla Harts and Susant Grant by 25 e-mail. (Dkt. No. 37.) Thereafter on March 5, 2026, Defendant filed a brief in support of 26 its request to serve deposition subpoenas on Mikayla Harts and Susan Grant by e-mail. 27 (Dkt. No. 38.) 28 1 III. FACTUAL BACKGROUND 2 For the reasons stated below, Defendant has been unable to effectuate personal 3 service on both Mikayla Harts and Susan Grant. 4 A. MIKAYLA HARTS 5 Mikayla Harts is a former employee of the Defendant. (Dkt. No. 38 at 2.) Both Ian 6 Kindermann, the Plaintiff, and Harts reported to Regional Director Jeniffer Bailly. (Id.) 7 Because Harts may be a key witness to Bailly’s alleged mistreatment of Plaintiff, 8 Defendant may face prejudice if unable to depose her. (Id. at 2-3.) 9 On February 9, 2026, Defendant properly noticed Plaintiff of its intent to depose 10 Mikayla Harts via Remote Technology on February 23, 2026. (Dkt. No. 38-1 at 5.) Process 11 servers have attempted service at Harts’ home three times on three different dates. (Id. at 12 10-12.) Additionally process servicers conducted surveillance of Harts’ home yet were 13 unsuccessful in locating her. (Id. at 13-14.) Harts’ occupation is in a field-based sales 14 position which does not consist of a physical location where she could be served at her 15 place of work. (Id. at 19.) 16 B. SUSAN GRANT 17 Susan Grant is also a former employee of the Defendant. (Dkt. No. 38 at 3-4.) 18 Because Grant may have accused Bailly of treating her poorly and creating a hostile work 19 environment, Defendant may face prejudice if unable to depose her. (Id.) 20 On February 16, 2026, Defendant properly noticed Plaintiff of its intent to subpoena 21 Grant for a deposition via Remote Technology on March 2, 2026. (Dkt. No. 38-1 at 22.) 22 That same day, Merz’s counsel contacted Grant’s former counsel, Michelle Matheson, 23 Esq., to ask if Matheson was authorized to accept service on Grant’s behalf (Id. at 18.) On 24 February 17, 2026, Matheson confirmed that she was authorized to accept service on 25 Grant’s behalf. (Id. at 18.) On February 18, 2026, Matheson informed Merz’s counsel that 26 Grant revoked the authority to accept service for her. (Id.) 27 Defendant’s attempts at personal service have been unsuccessful thus far. (Dkt. No. 28 38 at 4.) Two attempts at personal service by two separate process servers have failed. 1 (Dkt. No. 38-1 at 28-32.) In total, five separate attempts, on three different days, have been 2 unsuccessful. (Id.) Like Harts, Grant works in field sales and does not have a physical work 3 location where she could be served. (Id. at 19.) 4 IV. LEGAL STANDARD 5 “Serving a subpoena requires delivering a copy to the named person.” Fed. R. Civ. 6 P. 45(b)(1). Rule 45 should “be construed, administered, and employed by the court and 7 the parties to secure the just, speedy, and inexpensive determination of every action and 8 proceeding.” Fed. R. Civ. P. 1. This standard is interpreted to require personal service of 9 non-parties. BBK Tobacco & Foods LLP v. Skunk Inc., 2020 WL 619675, at *1 (D. Ariz. 10 Feb. 10, 2020) (“Although personal service might, as a purely practical matter, have been 11 the only way to accomplish ‘delivery’ in an earlier era, modern technology can often 12 perform that task just as well in today’s day and age.”). Indeed, “a growing number of cases 13 have departed from the view that personal service is required and alternatively have found 14 service of a subpoena under Rule 45 proper absent personal service.” Arthur R. Miller, 9A 15 Fed. Prac. & Proc. Civ. § 2454 (3d ed. 2019). Alternative service includes e-mail or mail. 16 See, Toni Brattin & Co., Inc. v. Mosaic Int’l, LLC, 2015 WL 1844056, at *3 (N.D. Cal. 17 Apr. 9, 2015); Steve McCurry Studios, LLC v. Web2Web Mktg., Inc., 2014 WL 1877547, 18 at *2 (N.D. Cal. May 9, 2014). 19 V. DISCUSSION 20 The facts are in accordance with permitting alternative service by e-mail because (1) 21 Defendant has diligently attempted to, yet unsuccessfully, effect personal service on both 22 Harts and Grant; (2) Harts and Grant appear to be evading service; and (3) e-mail service 23 ensures timely, fair notice and an opportunity to object or file a motion to quash. 24 A. Alternative Service After Multiple Attempts and Failures 25 “[C]ourts are more inclined to grant such alternative service where the serving 26 party has provided sufficient evidence of its earlier diligence in attempting to effectuate 27 personal service.” Fujikura Ltd. v. Finisar Corp., 2015 WL 5782351, *5 (N.D. Cal. 28 2015); Youngevity Int’l Inc. v. Innov8tive Nutrition, Inc., 2025 WL 36169, at *1 (S.D. 1 Cal. Jan. 6, 2025) (permitting alternative service after the plaintiff made a diligent 2 showing of its multiple attempts and failures to serve its subpoena). 3 Defendant has diligently attempted to serve both Harts and Grant but has been 4 unsuccessful. Defendant process servers have attempted to serve Harts at her home three 5 times on three different dates. (Dkt. No. 38-1 at 10-12.) Despite surveillance of Harts’ 6 home for several days, process servers have been unable to effectuate personal service. 7 (Id. at 13-14.) Additionally, process servers have attempted five times on three different 8 dates to effectuate personal service on Grant—each to no avail. (Id. at 28-32.) Ms. Grant 9 at one point permitted her former counsel to accept service on her behalf; however, she 10 promptly revoked that authorization. (Id. at 18.) Given that both Harts and Grant appear 11 not to have a permanent work location, it is unclear if further attempts at personal service 12 will be fruitful. (Id. at 19.) Accordingly, alternative service is appropriate in part because 13 Defendant has diligently, but unsuccessfully, attempted personal service. 14 B. Purposeful Evasion of Service 15 The Federal Rules of Civil Procedure are not to be “construed as a shield for a 16 witness who is purposefully attempting to evade service.” Toni Brattin & Co., 2015 WL 17 1844056, at *3–4. In such situations, alternative service is appropriate when the non-party 18 recipient is elusive. Armed Forces Bank NA v. Dragoo, 2018 WL 8621583, at *2 (D. Ariz. 19 May 23, 2018). 20 Harts and Grant may be evading personal service. Harts is aware of Defendant’s 21 attempt to serve her with a subpoena. (Dkt. No. 38-1 at 17.) Despite Harts’ awareness and 22 surveillance of her home for several days by process servers, multiple attempts at service 23 have failed at varying times during the day and evening. (Id. at 10-14.) Grant likewise is 24 aware of Defendant’s attempt to serve her, at one point even authorizing her former counsel 25 to accept service on her behalf and then revoking authorization the next day. (Id. at 18.) 26 Defendant thereafter attempted service on five separate occasions over the course of three 27 days with no success. (Id. at 28-32.) Accordingly, alternative service is appropriate in part 28 1 to not allow the Federal Rules of Civil Procedure to be used as a shield for the potential 2 || evasion of personal service. 3 C. Ensuring Timely, Fair Notice and an Opportunity to Object or File a 4 Motion to Quash 5 Courts increasingly permit alternative service so long as it is “reasonably calculated 6 || to provide timely, fair notice and an opportunity to object or file a motion to quash.” Jn re 7 || Delta Air Lines, Inc., 2023 WL 9018986, at *4 (C.D. Cal. Dec. 4, 2023) (citations omitted). 8 || Alternative service by e-mail is an effective and efficient method of providing notice. BBK 9 || Tobacco & Foods LLP, 2020 WL 619675, at *1. 10 Alternative service will adequately notice Harts and Grant of their depositions and 11 provide an opportunity to object. Defendant has confirmation of Harts’ current e-mail 12 address and Grant’s current e-mail address. (Dkt. No. 38 at 7-8.) Defendant intends to send 13 Harts’ subpoena to her current e-mail address and Grant’s subpoena to her current e- 14 || mail address as well as her counsel’s e-mail address. /d.) Accordingly, alternative service 15 appropriate in part to ensure both Harts and Grant receive fair notice and have an 16 || opportunity to object or file a motion quash. 17 VI. CONCLUSION 18 Accordingly, after due consideration and for the reasons stated above, the Court 19 ||GRANTS Defendant’s Request for Permission Authorizing Alternative Service of 20 ||Deposition Subpoenas. The Court authorizes Defendant to utilize e-mail to serve 21 || deposition subpoenas upon Harts and Grant. 22 IT IS SO ORDERED. 23 || Dated: March 12, 2026 24 By FG. 26 07 Hon. Steve B. Chu United States Magistrate Judge