Mango v. Special Automotive Solutions

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 GREGORY P. MANGO, Case No. 23-cv-03422-LB 12 Plaintiff, ORDER DENYING SERVICE BY 13 v. CALIFORNIA SECRETARY OF STATE 14 SPECIAL AUTOMOTIVE SOLUTIONS, Re: ECF No. 11 15 Defendant. [16] 17 In this copyright-infringement case, the plaintiff has moved to serve the defendant through the 18 California Secretary of State. The plaintiff contends that despite diligent efforts, he has been 19 unable to effectuate service because the defendant’s “registered agent information on file with the 20 California Secretary of State is inaccurate or [the] registered agent is avoiding service.”1 21 Federal Rule of Civil Procedure 4(h)(1)(A) allows service of process on corporations and other 22 business entities by any method permitted by the law of the state in which the district court is 23 located or in which service is made. See Fed. R. Civ. P. 4(e)(1) & (h)(1)(A). Under California law, 24 a court may authorize service on a corporation through the Secretary of State if (1) the 25 corporation’s agent for service “has resigned and has not been replaced” or “cannot with 26 reasonable diligence be found at the address designated,” and (2) the plaintiff shows by affidavit [27] 1 Compl. – ECF No. 1; Mot. – ECF No. 11. Citations refer to material in the Electronic Case File 1 that process “against [the] domestic corporation cannot be served with reasonable diligence.” Cal. 2 Corp. Code § 1702(a). The second, “reasonable diligence” requirement may be satisfied by 3 showing that process cannot be served (i) on the corporation’s designated agent by hand under 4 California Civil Code sections 415.10, 415.20(a), or 415.30(a), or (ii) on the corporation itself 5 under Civil Code sections 416.10(a)–(c) or 416.20(a). Id. 6 The plaintiff declares that (1) the defendant’s business address is the same as that of the 7 defendant’s registered agent for service, (2) that address is a rentable office workspace and the 8 defendant’s corporate statement of information is out of date, (3) the plaintiff attempted service at 9 that address but located only an individual not associated with the defendant, and (4) the plaintiff 10 attempted service on an individual sharing the name of the defendant’s registered agent at another 11 address, but that was not the right person.2 12 The court denies the motion. The plaintiff has satisfied the first requirement under § 1702(a) 13 because the defendant’s registered agent could not be found at the address designated. But for the 14 second requirement, the plaintiff must at least attempt service on the corporation itself, such as by 15 serving a corporate officer. Gibble v. Car-Lene Rsch., Inc., 67 Cal. App. 4th 295 , 311–12 (1998) 16 (“[A] careful reading of Corporations Code section 1702 suggests that a party serving process 17 upon any corporation . . . should, and arguably must, first attempt service upon both the officers 18 and agents enumerated in subdivisions (b) and (c) of section 416.10, and upon a ‘trustee’ pursuant 19 to section 416.20, before resorting to Secretary of State service.”). The defendant’s corporate 20 officers are named in its October 2022 statement of information.3 Johnson v. Umbarger LLC, No. 21 20-CV-06542-LHK, 2021 WL 292192 , at *2–3 (N.D. Cal. Jan. 28, 2021) (explaining methods to 22 satisfy the “reasonable diligence” requirement of § 1702(a), including by relying on the 23 corporation’s statement of information filed with the California Secretary of State). [26] 2 Mandel Decl. – ECF No. 11-1 at 2–3 (¶¶ 2–9). 27 3 Special Automotive Solutions, Statement of Information (Oct. 17, 2022), https://bizfileonline.sos.ca.gov/api/report/GetImageByNum/0291491230191971520500490341361772 ] At this time, the court denies the plaintiff's motion to serve the defendant through the 2 || California Secretary of State. This resolves ECF No. 11. 3 IT IS SO ORDERED. 4 Dated: October 3, 2023 LA 5 LAUREL BEELER 6 United States Magistrate Judge [10] 1] 2B «4 o [16] («17 O Z 18