Ewing v. Pollard

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 ANTON EWING, Case No.: 19-CV-855-CAB-BGS 13 Plaintiff, ORDER GRANTING MOTION TO 14 v. QUASH SERVICE OF SUMMONS AND COMPLAINT 15 MARK POLLARD, 16 Defendant. [Doc. No. 10] 17 18 19 Before the Court is Defendant’s motion to quash service of summons and complaint. 20 [Doc. No. 10.] The motion has been fully briefed and the Court deems it suitable for 21 determination on the papers submitted and without oral argument. See S.D. Cal. CivLR 22 7.1(d)(1). For the reasons set forth below, the motion is granted. 23 I. BACKGROUND 24 Plaintiff Anton Ewing filed a complaint against Defendant Mark Pollard on May 7, 25 2019, alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 26 (“TCPA”). [Doc. No. 1.] On June 18, 2019, Plaintiff filed an ex parte request to serve 27 Defendant by publication [Doc. No. 5], which this Court denied on June 21, 2019. [Doc. 28 No. 6.] On June 25, 2019, Plaintiff filed an executed service of summons. [Doc. No. 7.] 1 In the proof of service, the process server declared that on a third attempt she completed 2 “substituted service on a person of suitable age and discretion residing therein at Defendant 3 Pollard’s principle place of abode.” [Id. at 4.1] The process server declared that when she 4 first arrived at the residence, she saw two teenagers who appeared to be 18 or 19 years old 5 playing basketball on the driveway. [Id.] According to the process server, when the two 6 teenagers started running towards the garage, she got out of her car, ran down the driveway, 7 and threw the documents at the garage door while yelling that she had seen them and they 8 were served. [Id.] Thereafter, the process server mailed the summons and complaint to 9 Defendant’s address through FedEx, UPS, and USPS, and also emailed a copy to 10 Defendant. [Id. at 4–5.] On August 5, 2019, Defendant moved to quash service of 11 summons and complaint. [Doc. No. 10.] 12 II. LEGAL STANDARD 13 Federal Rule of Civil Procedure 12(b)(5) “allows the defendant to attack the manner 14 in which service was, or was not, attempted.” Ponomarenko v. Shapiro, No. 16-cv-02763- 15 BLF, 2017 WL 1709335, at *2 (N.D. Cal. May 3, 2017). “When the validity of service is 16 contested, the burden is on the plaintiff to prove that service was valid under Rule 4.” Id. 17 (citing Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004)). “If the plaintiff is unable 18 to satisfy this burden, the Court has the discretion to either dismiss the action or retain the 19 action and quash the service of process.” Id. (citing Lowenthal v. Quicklegal, Inc., No. 20 16-cv-3237, 2016 WL 5462499, at *5 (N.D. Cal. Sept. 28, 2016)). 21 Federal Rule of Civil Procedure 4 provides that “[u]nless federal law provides 22 otherwise, an individual . . . may be served by . . . leaving a copy of [the summons and 23 complaint] at the individual’s dwelling or usual place of abode with someone of suitable 24 age and discretion who resides there.” FED. R. CIV. P. 4(e)(2)(B). 25 26 27 28 1 III. DISCUSSION 2 Plaintiff asserts he effectuated substituted service upon Defendant pursuant to 3 Federal Rule of Civil Procedure 4(e)(2)(B). While Plaintiff indicated in his ex parte request 4 to serve by publication that personal service attempts were previously unsuccessful in May, 5 the executed service that was filed with the Court is devoid of any facts regarding the 6 process server’s due diligence to attempt personal service in June. Instead, the process 7 server’s declaration begins, “I complete [sic] a third attempt and actual service on Mark 8 Pollard.” [Doc. No. 7 at 4.] The declaration then goes on to state the process server saw 9 two teenagers playing basketball on the driveway who appeared 18 or 19, and the process 10 server ran after them and threw the documents at the garage door as they were closing it, 11 yelling out that she saw them and they were served. [Id.] 12 The process server appears to have made no attempts to ascertain the age of the two 13 teenagers she saw on the driveway, whether they reside at Defendant’s address, or their 14 relationship to the Defendant. Defendant asserts that he was inside his home and his 16- 15 year-old son was playing basketball with a friend who is also 16, and there was no knock 16 or ring of the doorbell. Without any attempt at speaking with the teenagers, the process 17 server cannot plausibly declare they were “of suitable age and discretion residing therein.” 18 While the process server states that they ran inside when they saw her, with knowledge of 19 the two individuals present at Defendant’s address, the process server could have gone to 20 the door to inquire as to the above information or whether the Defendant was available. 21 Resorting to throwing the documents at two unidentified teenagers while the garage door 22 is closing is not sufficient for substitute service. 23 Accordingly, Defendant’s motion to quash is GRANTED. However, the Court will 24 afford Plaintiff another opportunity to serve Defendant correctly. 25 26 27 28 1 IV. CONCLUSION 2 For the foregoing reasons, the Court GRANTS Defendant’s motion to quash. 3 || Plaintiff shall effect service of process on Defendant on or before September 23, 2019. 4 || The Clerk of Court is instructed to set aside the entry of default against Defendant. 5 It is SO ORDERED. 6 || Dated: September 10, 2019 8 9 Hon. Cathy Ann Bencivengo United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28