2:20-cv-00460
D. Ariz.Nov 30, 2020Background
- Chalasani sued Gunday and corporate defendants on March 3, 2020; corporate defendants were served and appeared but Gunday had not been personally served.
- Plaintiff made multiple attempts to serve Gunday at his Las Vegas residence and San Francisco business; corporate counsel declined to accept service.
- The Court extended the service deadline to July 17, 2020 and ordered defense counsel to provide Gunday’s address; counsel provided the same Las Vegas and San Francisco addresses and said Gunday would be primarily in San Francisco.
- A process server attempted personal service June 26–29, 2020; on June 29 he left documents with a person identified as “James Morrison” and mailed copies to the San Francisco address; the server later spoke by phone with Gunday, who allegedly acknowledged receipt.
- Gunday disputed those facts (submitted a contrary declaration in reply, which the Court disregarded as new material). The Court held substitute service invalid because the evidence did not show Morrison was the “person apparently in charge,” but found plaintiff had exercised reasonable diligence.
- The Court denied Gunday’s motion to dismiss, extended the service deadline to December 7, 2020, and authorized alternative service on defense counsel (plus mailing to the San Francisco address); service is effective on the date of mailing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of substitute service under Cal. Civ. Proc. Code § 415.20(b) — "reasonable diligence" | Chalasani: repeated attempts at home and business, plus two attempts in SF, satisfy reasonable diligence | Gunday: plaintiff failed to exercise reasonable diligence (e.g., server did not call posted phone numbers; missed other opportunities) | Court: Plaintiff exercised reasonable diligence; two or three attempts can suffice. |
| Whether person who received papers ("James Morrison") was a "person apparently in charge" | Chalasani: Morrison answered the door, identified himself, and as an intern would likely deliver the papers | Gunday: Morrison was unaffiliated and lacked authority or indicia of being in charge | Court: Substitute service invalid — plaintiff’s declarations were conclusory and did not establish Morrison was apparently in charge. |
| Whether dismissal for insufficient service / lack of personal jurisdiction is required under Rule 12(b)(5)/(2) and Rule 4(m) | Chalasani: if service was improper, she requested an extension and alternative service; argued actual notice and diligence justify extension | Gunday: service was untimely and insufficient, so dismissal is appropriate | Court: Denied dismissal; under Rule 4(m) granted extension to Dec. 7, 2020. |
| Whether alternative service on defense counsel (and mailing to SF address) is appropriate | Chalasani: permit service on counsel and mail to last-known business address | Gunday: service on counsel would condone server failures and is inappropriate | Court: Authorized alternative service on counsel under Ariz. R. Civ. P. 4.1(k) and required mailing to SF address; service effective on mailing. |
Key Cases Cited
- Omni Capital Int’l Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97 (1987) (proper service is prerequisite to exercise of personal jurisdiction)
- Efaw v. Williams, 473 F.3d 1038 (9th Cir. 2007) (Rule 4(m) requires extension for good cause; court may extend even without good cause)
- Electrical Specialty Co. v. Road & Ranch Supply, Inc., 967 F.2d 309 (9th Cir. 1992) (showing reasonable and diligent effort can establish good cause for service delay)
- Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685 (9th Cir. 1988) (Rule 4 liberally construed where defendant receives sufficient notice)
- Khourie, Crew & Jaeger v. Sabek, Inc., 220 Cal. App. 3d 1009 (Cal. Ct. App. 1990) (substitute service valid where the only person who responded was apparently in charge)
- Espindola v. Nunez, 199 Cal. App. 3d 1389 (Cal. Ct. App. 1988) (two or three attempts at personal service may satisfy reasonable diligence)
- Bein v. Brechtel-Jochim Group, Inc., 6 Cal. App. 4th 1387 (1992) (California service rules are liberally construed to effectuate service when defendant has actual notice)