Dalrada Precision Corp. v. Cox

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DALRADA PRECISION CORP., Case No.: 23-CV-1064 JLS (DEB) a California corporation, wholly owned 12 subsidiary of DALRADA FINANCIAL ORDER GRANTING IN PART AND 13 CORPORATION, a Wyoming DENYING IN PART PLAINTIFFS’ corporation, MOTION FOR LEAVE TO SERVE 14 SUMMONS AND COMPLAINT BY Plaintiffs, 15 ALTERNATIVE OR SUBSTITUTED v. SERVICE AND REQUEST FOR 16 EXTENSION OF TIME FOR STUART COX, an individual, 17 SERVICE OF PROCESS Defendant. 18 (ECF Nos. 9, 10) 19 20 21 Presently before the Court are Plaintiffs Dalrada Precision Corporation and Dalrada 22 Financial Corporation’s (collectively, “Plaintiffs”) Opposition to Motion to Dismiss 23 Complaint (“Opp’n,” ECF No. 10) and Motion for Leave to Serve Summons and 24 Complaint by Alternative or Substituted Service and Request for Extension of Time for 25 Service of Process (“Mot.,” ECF No. 9). 26 In its June 29, 2023 Order (“Order,” ECF No. 7), which the Court here incorporates 27 by reference, the Court denied Plaintiffs’ requests for a temporary restraining order and 28 preliminary injunction. In the six months following the Order, no action occurred in the 1 case. The Court therefore set this matter for hearing on February 9, 2024 pursuant to Civil 2 Local Rule 41.1, which allows the Court to dismiss an action pending for six months or 3 more without action for want of prosecution. See ECF No. 8. Plaintiffs responded to this 4 Court’s Notice of Hearing by filing the Motion and Opposition on February 5, 2024. 5 Plaintiffs explain that the delay in this case relates to their inability to serve 6 Defendant Stuart Cox, who “currently resides in the Philippines.” Opp’n at 4. Though 7 Plaintiffs possess an email address and cell number for Defendant, they lack any “location 8 information for Defendant other than a region/area where he is believed to be residing.” 9 Id. Plaintiffs report they have conducted “an exhaustive internet search such as Google, 10 Linkdin [sic], etc.” that failed to uncover an address for Defendant. Id. Plaintiffs also 11 indicate they have recently engaged an international company to “perform a skip trace on 12 Defendant in order to find a location where he could be served.” Id. Plaintiffs request that 13 the Court (1) provide “leave to serve Defendant . . . by publication in an adjudicated 14 newspaper where Defendant was last known to have resided” and (2) “grant . . . an 15 extension of time in which to serve Defendant.” Mot. at 5. 16 As Plaintiffs have not made a sufficient showing to justify service by publication on 17 an individual residing in a foreign country, the Court DENIES WITHOUT PREJUDICE 18 Plaintiffs’ request to serve Defendant by publication. Plaintiffs—who are represented by 19 counsel—argue that the Court may authorize service by publication pursuant to Federal 20 Rule of Civil Procedure 4(e)(1) and California law. See Mot. at 3 (citing Cal. Civ. Proc. 21 Code § 415.50). But Rule 4(e) governs service on “an individual . . . in a judicial district 22 of the United States.” Fed. R. Civ. P. 4(e).1 It is Rule 4(f), not Rule 4(e), that governs 23 24 1 Even if Rule 4(e)—and through it, California law—applied, Plaintiffs’ showing would be insufficient. 25 California Code of Civil Procedure § 415.50 requires Plaintiffs to submit “affidavit[s]” demonstrating, among other required showings, that service cannot be completed through reasonable diligence by means 26 other than publication. Though Plaintiffs’ Motion references “declarations attached hereto,” Mot. at 3, Plaintiffs filed no declaration or affidavit alongside either their Motion or Opposition describing their 27 efforts to locate and serve Defendant. Moreover, as Plaintiffs have neither completed a skip trace nor 28 explained the approximately four-month gap between when they first requested a quote for a skip trace on 1 || service on individuals within a foreign country. Fed. R. Civ. P. 4(f). Plaintiffs make no 2 || argument as to whether Rule 4(f) authorizes service by publication under the circumstances 3 || of this case, and the Court will not manufacture arguments for Plaintiffs. 4 That said, as Plaintiffs indicate that a skip trace to locate Defendant is ongoing and 5 |/allege facts that suggest that Defendant is evading service of process,” the Court will 6 GRANT Plaintiffs ninety (90) days from the date of this Order to serve Defendant through 7 || means authorized by Federal Rule of Civil Procedure 4(f). If Plaintiffs are unable to serve 8 || Defendant by this deadline, Plaintiffs SHALL FILE a status report describing their efforts 9 ||to serve Defendant during the extension. If said status report does not demonstrate good 10 || cause for an additional extension, the Court may examine whether dismissal of this action 11 |/is appropriate based on Plaintiffs’ failure to serve. See Nylok Corp. v. Fastener World Inc., 12 ||396 F.3d 805, 807 (7th Cir. 2005) (“Because district courts need to be able to control their 13 ||dockets, we have stated that the amount of time allowed for foreign service is not 14 || unlimited.”); Inst. of Cetacean Rsch. v. Sea Shepherd Conservation Soc ’y, 153 F. Supp. 3d 15 1291, 1320 (W.D. Wash. 2015). 16 IT IS SO ORDERED. 17 || Dated: February 9, 2024 18 on. Janis L. Sammartino United States District Judge 19 20 21 22 23 74 skeptical that Plaintiffs have exercised reasonable diligence in their efforts to locate and serve Defendant up to this point, see United Fin. Cas. Co. v. R.U.R. Transportation, Inc., No. 22CV333-LL-WVG, 2022 25 || WL 16747283, at *3-4 (S.D. Cal. Nov. 7, 2022) (finding reasonable diligence in part because an investigator’s completed skip trace had not located the defendant). Lastly, Plaintiffs have not identified 26 || through which publication they intend to serve Defendant nor explained why said publication is likely to 77 provide notice to Defendant. See id. at *5. 28 Plaintiffs allege that Defendant “has contacted one of [Plaintiffs’] officers and has informed [the officer] that [Defendant] is aware that Plaintiff[s] ha[ve] filed a lawsuit against him.” Mot. at 3.