Good Night Investments, LLC v. Marc Oliver Kozlowski

[2] 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION [6] 7 GOOD NIGHT INVESTMENTS, LLC, Case No. 5:25-cv-04576-BLF 8 Plaintiff, ORDER DENYING DEFENDANT’S 9 v. MOTION TO QUASH SERVICE AND SET ASIDE DEFAULT 10 MARC OLIVER KOZLOWSKI, [Re: ECF No. 15] 11 Defendant. [12] 13 Before the Court is pro se Defendant Marc Oliver Kozlowski’s motion to quash service of 14 process and set aside default. ECF No. 15 (“Mot.”). Plaintiff Good Night Investments, LLC 15 opposes the motion. ECF No. 22. The Court finds the motion suitable for adjudication without 16 oral argument and VACATES the hearing scheduled for February 12, 2025. See Civ. L.R. 7-1(b). 17 For the reasons below, Plaintiff’s motion is DENIED. 18 I. BACKGROUND 19 Plaintiff filed the complaint in this action on May 30, 2025. ECF No. 1. On August 11, 20 2025, Magistrate Judge Cousins granted Plaintiff’s ex parte motion to extend time for service and 21 denied Plaintiff’s request directing service by the U.S. Marshals Service. ECF No. 9. On 22 August 27, 2025, Plaintiff returned a certificate of service stating that the process server left the 23 summons at Defendant’s residence with Laura Williams on August 15, 2025, and on August 19, 24 2025, “thereafter mailed by first class, postage prepaid, copies of the documents to the person to 25 be served at the place where the copies were left.” ECF No. 12. 26 On September 8, 2025, Plaintiff filed a motion for entry of default against Defendant, ECF 27 No. 13, which the Clerk entered on September 10, 2025, ECF No. 14. Defendant subsequently 1 undersigned district judge. ECF No. 20. 2 II. LEGAL STANDARD 3 The Court lacks jurisdiction over defendants who have not been properly served. SEC 4 v. Ross, 504 F.3d 1130 , 1138–39 (9th Cir. 2007). Accordingly, Federal Rule of Civil 5 Procedure 12(b)(5) permits a court to dismiss an action for insufficiency of service of process. 6 When the validity of service is contested, the burden is on the plaintiff to prove that service was 7 valid under Rule 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “The court may 8 consider evidence outside the pleadings in resolving a Rule 12(b)(5) motion.” Fairbank 9 v. Underwood, 986 F. Supp. 2d 1222, 1228 (D. Or. 2013). If the plaintiff is unable to satisfy its 10 burden of proving valid service, the Court has the discretion to either dismiss the action or retain 11 the action and quash the service of process. Lowenthal v. Quicklegal, Inc., No. 16-cv-3237-LB, [12] 2016 WL 5462499 , at *14 (N.D. Cal. Sept. 28, 2016). 13 “The court may set aside an entry of default for good cause” pursuant to Federal Rule of 14 Civil Procedure 55(c). In the Ninth Circuit, good cause is established when the defendant 15 demonstrates that (1) the default was not the result of culpable conduct, (2) the defendant has a 16 meritorious defense, and (3) setting aside the default would not result in prejudice to the plaintiff. 17 TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691 , 697 (9th Cir. 2001), as amended on denial of 18 reh’g and reh’g en banc ( May 9, 2001 ). Technically, this test “is disjunctive, such that a finding 19 that any one of these factors is true is sufficient reason for the district court to refuse to set aside 20 the default.” United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085 , 21 1091 (9th Cir. 2010). “Crucially, however, judgment by default is a drastic step appropriate only 22 in extreme circumstances; a case should, whenever possible, be decided on the merits.” Id. 23 (internal quotation marks and citation omitted). 24 III. DISCUSSION 25 A. Defendant Was Properly Served 26 Rule 4 of the Federal Rules of Civil Procedure allows service on an individual within a 27 judicial district of the United States by the methods outlined in the rule itself, as well as by the 1 service is attempted (Florida). Fed. R. Civ. P. 4(e). Defendant argues that “[t]he summons and 2 complaint were incorrectly served on Laura Williams, who does not reside with the Defendant, 3 and who was not authorized to accept service of process on behalf of the Defendant.” Mot. at 2. 4 Defendant further argues that “[a]lthough Plaintiff also mailed the Summons and Complaint, this 5 attempt at service was also improper under Federal and Florida law.” Id. In support of the 6 motion, Defendant has filed a declaration of Laura Williams in which she states that she informed 7 the process server that she did not permanently reside at Defendant’s residence and would not 8 accept any papers on his behalf. Declaration of Laura Williams (“Williams Decl.”) ¶¶ 4–5, ECF 9 No. 15-1. 10 Plaintiff argues that service on Defendant complies with the requirements of Federal Rule 11 of Civil Procedure 4(e)(2)(B).1 Opp. at 6. The Court agrees. Rule 4(e)(2)(B) provides that an 12 individual may be served by “leaving a copy of [the summons and of the complaint] at the 13 individual’s dwelling or usual place of abode with someone of suitable age and discretion who 14 resides there.” Defendant does not dispute that the summons was left at his dwelling or that 15 Ms. Williams is of suitable age and discretion—the only issue before the Court is whether 16 Ms. Williams “resides” there. The Court agrees with Plaintiff that the Williams Declaration—the 17 only evidence suggesting that Defendant was not validly served—is not credible based on Plaintiff 18 having obtained a Comprehensive Person Report confirming that she has continuously resided at 19 Defendant’s residence since September 2016 and that her driver’s license, voter registration, and 20 business filings all list that address. See Declaration of Frank Santana ¶¶ 3–8, ECF No. 22-2. 21 “When a defendant alleges that he was not served with process, ‘[a] signed return of 22 service constitutes prima facie evidence of valid service which can be overcome only by strong 23 and convincing evidence.’” craigslist, Inc. v. Hubert, 278 F.R.D. 510, 513 (N.D. Cal. 2011) 24 (alteration in original) (quoting SEC v. Internet Solutions for Bus. Inc., 509 F.3d 1161 , 1163 25 (9th Cir. 2007)). Because Plaintiff has filed a signed return of service, the Court concludes that [26] 1 Plaintiff also argues that Defendant’s motion is procedurally defective for failure to comply with [27] Civil Local Rule 7-2(a). Opp. at 6. In light of Defendant’s status as a pro se litigant the Court 1 Ms. William’s declaration “is insufficient to overcome this prima facie evidence of valid service.” 2 || Id. And to the extent that Defendant argues that Ms. Williams was not authorized to accept 3 service on his behalf, this argument is unavailing. Although Rule 4(e)(2)(c) requires the 4 individual accepting service to be authorized, “Rule 4(e)(2)(b) requires no such authorization.” 5 || S.S. v. Ali, No. 23-cv-5074-JSC, 2024 WL 150728 , at *5 (N.D. Cal. Jan. 11, 2024). 6 B. Defendant Has Not Shown Good Cause to Set Aside the Entry of Default 7 Defendant has not made any showing of good cause to set aside the entry of default. 8 || Moreover, the Court agrees with Plaintiff that Defendant’s conduct was culpable in that Defendant 9 || clearly received constructive notice of this action and failed to respond. TCI Grp., 244 F.3d 10 || at 697. Defendant has provided no evidence, let alone “specific facts,” that would constitute a 11 defense. Jd. at 700. The Court agrees that reopening the case would cause undue delay to 12 || Plaintiff, who has already tried numerous times to effectuate service on Defendant. Although the 5 13 Court is mindful that resolution on the merits is almost always preferable to the entry of a default, 14 || it concludes that service was proper, and there is simply no showing of good cause justifying an 15 order setting aside the entry of default in this case. 16 || IV. ORDER 3 17 For the foregoing reasons, IT IS HEREBY ORDERED that the motion to quash service of 18 || process and set aside default is DENIED. Plaintiff SHALL submit a motion for default judgment 19 within 60 days of the date of this order. [20] 21 Dated: October 24, 2025 BETH LABSON FREEMAN 23 United States District Judge