Walsh v. Blackline Partners, LLC
3:22-cv-05656
N.D. Cal.Dec 28, 2022Background
- Plaintiff (Secretary of Labor) sued on Sept. 30, 2022 alleging ERISA fiduciary breaches by Mark Kubinski, Blackline Partners LLC, and the Blackline Partners LLC 401(k) Plan. Kubinski is Blackline’s owner-member and a plan trustee.
- Prior to and after filing, counsel for the Secretary and Kubinski exchanged extensive communications (≈30 emails and ~21 phone calls); counsel sent the complaint, summons, and waiver requests by mail and to the email Kubinski used to communicate (mrkubinski@hotmail.com).
- Kubinski did not return the waiver; the Secretary then attempted personal service at multiple addresses (including the Secretary of State address and locations in California and New York) but process servers found vacant units, incorrect residents, or no tenant listings.
- Kubinski at times responded by email, requested a phone call, and provided an address that proved invalid or where he did not reside; communications suggested possible evasion of physical service.
- On Dec. 20, 2022 the Secretary moved to (1) allow alternate service by email at the address Kubinski used with counsel and (2) continue the case management conference; no opposition was filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by email is an acceptable method of service | Kubinski had actual notice via prior emails/phone; complaint and summons sent to his email; Secretary made diligent physical-service efforts; email is reasonably calculated to give notice | No formal response; implicit position that Rule 4 requires conventional personal or substituted service | Court: email service to mrkubinski@hotmail.com is authorized and defendants are deemed served |
| Whether the case management conference should be continued for good cause | Multiple diligent but unsuccessful service attempts justify extending deadlines to allow service and response | No opposition filed | Court: good cause found; CMC continued from Jan 5, 2023 to Mar 9, 2023 |
Key Cases Cited
- Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002) (due-process standard for service: notice reasonably calculated to apprise interested parties)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (service must be reasonably calculated under circumstances to inform interested parties)
- Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992) (Rule 16(b) "good cause" focuses on diligence of movant)