JFXD TRX ACQ LLC v. East River JW Inc

[5] UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE [7] JFXD TRX ACQ LLC, CASE NO. 2:24-cv-00594-JNW [8] Plaintiff, ORDER DENYING PLAINTIFF’S 9 MOTION FOR ALTERNATIVE v. SERVICE [10] EAST RIVER JW INC, [11] Defendant. [13] 1. INTRODUCTION [14] Before the Court are Plaintiff JFXD TRX ACQ LLC’s Motion for Alternative [15] Service, Dkt. No. 6, and Request for Judicial Notice, Dkt. No. 8. After considering [16] the motions, the record, and the law, the Court is fully informed. For the reasons [17] below, the Court GRANTS Plaintiff’s Request for Judicial Notice, Dkt. No. 8, and [18] DENIES Plaintiff’s Motion for Alternative Service, Dkt. No. 6. [19] 2. BACKGROUND [20] Plaintiff filed this patent infringement case on April 30, 2024, naming East [21] River JW Inc. (“East River”) as a defendant. East River is registered as a domestic [22] business corporation in New York. When East River registered with the New York [23] 1 Secretary of State, it provided a Brooklyn business address, which was recorded in 9 the Secretary of State’s online record. Dkt. No. 8 at 5. East River did not list the 3 names of any corporate officers or agents, nor did it provide any additional 4 ||addresses or contact information. Id. 5 The Secretary of State’s online record also includes this heading: : [7] g ||Id. Under this heading, the site confirms that East River’s Brooklyn address is the g ||“address to which the Secretary of State shall mail a copy of any process against the 10 || corporation served upon the Secretary of State by personal delivery[.|” Id. 11 Plaintiff's process server attempted to serve East River at the Brooklyn 12 address three times—on May 11, May 13, and May 14, 2024. Dkt. No. 7 at 1. On two 13 attempts, the person who answered at the Brooklyn address told the process server 14 ||that East River does not operate there. Id. 15 3. DISCUSSION 16 ||3.1 Judicial notice. 17 As a preliminary legal matter, the Court grants Plaintiffs request for judicial 18 notice under Fed. R. Evid. 201 and considers the information that Plaintiff provided 19 from the New York Secretary of State’s website. The Court finds that the business 20 information on the website is “not subject to reasonable dispute,” as it “can be 21 accurately and readily determined from a source[] whose accuracy cannot 29 reasonably be questioned.” Fed. R. Evid. 201(b)(2). Indeed, “[c]ourts routinely take 93 Judicial notice of records on file with a state’s Secretary of State and/or results 1 generated from a Secretary of State Business Search.” Cochran v. Air & Liquid Sys. 2 Corp., 2:21-CV-09612-MEMF (PDX), 2022 WL 7609937 , at *3, n. 5 (C.D. Cal. Oct. 3 13, 2022). [4] 3.2 Alternative service. [5] Turning to the service issue, Federal Rule of Civil Procedure 4 outlines [6] service requirements. To serve a corporation, plaintiffs must “deliver[ ] a copy of the [7] summons and of the complaint to an officer, a managing or general agent, or to any [8] other agent authorized by appointment or by law to receive service or process,” Fed. [9] R. Civ. P. 4(h)(1)(B), or “follow[ ] the state law for serving a summons in an action [10] brought in courts of general jurisdiction in the state where the district court is [11] located or where service is made,” Fed. R. Civ. P. 4(e)(1), (h)(1)(A). Thus, Plaintiff [12] can meet federal service requirements by satisfying Rule 4(h)(1)(B), or by serving [13] the summons in a manner permitted under Washington or New York law. [14] Plaintiff asks for permission to serve East River by mail—a method that [15] Washington law allows in limited circumstances. Unlike other forms of service, [16] Washington law requires litigants to receive court permission before serving process [17] by mail. CR 4(d)(4). Service by mail is allowed when the plaintiff shows that: [18] (1) they made reasonably diligent efforts to personally serve the defendants; [19] (2) service by publication would be justified under Washington law; and [20] (3) the defendant is as likely to receive actual notice from service by mail [21] as they would from service by publication. [23] 1 Russell v. Wadot Cap., Inc., CASE NO. C22-0531JLR, 2023 WL 4683906 , at *3 2 (W.D. Wash. July 21, 2023) (citing federal and Washington law). Washington courts 3 “strictly construe[ ]” the service-by-publication statute. Adams v. EMS Techs., Inc., 4 No. C09-1017JLR, 2009 WL 10723379 , at *3 (W.D. Wash. Aug. 28, 2009) (collecting 5 Washington cases). 6 Plaintiff has not established that service by publication—and by extension, 7 service by mail—is appropriate because it has not shown the “existence of one of the 8 cases … specifi[cally]” authorizing service by publication under RCW 4.28.100. For 9 example, Plaintiff has not shown that East River has property in Washington, see 10 RCW 4.28.100(1), or that East River once resided in Washington and later fled the 11 state to defraud its creditors or to avoid service, RCW 4.28.100(2). “Because service 12 by mail is only allowed if service by publication would be justified, [Plaintiff] has 13 not met the requirements under Washington law to effectuate service by mail.” 14 Amazon.com Servs. LLC v. Indecor Home Co., No. C22-1560-JCC, 2023 WL 15 2573237, at *2 (W.D. Wash. Mar. 20, 2023) (denying request for service by mail 16 under Washington law because foreign defendant had no property within 17 Washington). 18 Even if service by publication were authorized, Plaintiff has not shown 19 sufficient diligence to justify service by mail. “Service by publication or mail is in 20 derogation of the common law and cannot be used when personal service is 21 possible.” Rodriguez v. James-Jackson, 111 P.3d 271, 274 (Wash. Ct. App. 2005). 22 Here, federal and Washington law permit plaintiffs to serve a corporation’s agents. 23 See Fed. R. Civ. P. 4(h)(1)(B); RCW 4.28.080(9). While it is true that East River has 1 not affirmatively listed a registered agent with the New York Secretary of State, the 2 New York Secretary of State will accept service, as “Agent,” “by personal delivery.” 3 Dkt. No. 8 at 5; see also N.Y. Bus. Corp. L. § 306 (b)(1) (discussing “[s]ervice of 4 process on the secretary of state as agent of a domestic or authorized foreign 5 corporation”); Abondolo v. Jerry WWHS Co., Inc., 829 F. Supp. 2d 120 , 125 6 (E.D.N.Y. 2011) (“service of process on a corporation is deemed complete when the 7 Secretary of State is served”). 8 Plaintiff argues that RCW 4.28.090 prohibits serving the Secretary of State 9 under these facts. Dkt. No. 6 at 5. But by its own terms, that statute only governs 10 service on Washington corporations. RCW 4.28.090 (governing service of 11 corporations “created by the laws of this state,” i.e., Washington). Because Plaintiff 12 has not served the New York Secretary of State, the Court cannot conclude that 13 reasonably diligent efforts have been made to serve East River. Accordingly, the 14 Court cannot find that service by mail would “follow[ ] state law for serving a 15 summons” in Washington. Fed. R. Civ P. 4(e)(1), (h)(1). 16 4. CONCLUSION 17 In sum, the Court GRANTS Plaintiff’s Request for Judicial Notice, Dkt. No. 18 8, but DENIES Plaintiff’s Motion for Alternative Service, Dkt. No. 6. 19 Dated this 26th day of July, 2024. [20] A Jamal N. Whitehead [21] United States District Judge