Rutherford v. Los Charros

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 JAMES RUTHERFORD, Case No.: 19cv379-LAB (WVG) 12 Plaintiff, ORDER OF DISMISSAL 13 v. 14 LOS CHARROS, et al., 15 Defendants. [16] 17 Plaintiff James Rutherford filed this action February 26, 2019. He afterwards 18 dismissed all claims against Defendant Los Charros restaurant, leaving East 19 Valley Parkway Mall, LLC as the sole Defendant. He filed an amended complaint 20 on April 23 including claims against the Mall only. 21 On August 9, he sought entry of default against the Mall. That same day, 22 the Court issued an order directing the Clerk not to enter default, and pointing out 23 that Rutherford had not served the Mall. Instead, he served the restaurant a total 24 of three times (twice with summonses and complaints intended for the Mall). The 25 order pointed out that the restaurant’s owner or owners would not likely have 26 forwarded the duplicate summons to the Mall, and that the Mall likely had no idea 27 it was being sued. The Court ordered him to show cause why this action should 28 not be dismissed for failure to serve the Mall. See Fed. R. Civ. P. 4(m). The Court 1 pointed out that Rutherford was required to show good cause for his failure to 2 serve, and that merely asking for more time to effect service would not amount to 3 good cause. Unless he did so, the order cautioned, the Court would dismiss the 4 action without prejudice as required by Rule 4(m). 5 Rutherford has now filed a response (Docket no. 13), which explains his 6 failure to serve and asks for an extension of time in which to 1) withdraw his request 7 for entry of default; and 2) serve the Mall via the California Secretary of State, as 8 provided by Cal. Civ. Proc. Code § 416.10 (d) and Cal. Corp. Code § 1702 (a). 9 The response says Rutherford’s process server attempted personal service 10 on the Mall’s agent at the correct home address, but asserts that service was 11 impossible because the agent’s home had a fence around it and the gate was 12 locked. Then, the response says, Rutherford’s counsel told the process server to 13 serve the agent again, but “due to a miscommunication,” the process server 14 attempted to serve the Mall by delivering the papers to a restaurant employee. 15 This, as the Court’s order pointed out, was ineffective. “Before recognizing the 16 mistake in service,” Rutherford sought entry of default. 17 The response does not show good cause for the failure to serve. Many 18 people have fences around their houses, and keep their gates locked for security 19 or privacy. The response does not explain why this would make service on the 20 agent at home impossible. Process servers use a variety of approaches to make 21 contact with the people they are attempting to serve, such as ringing a call button 22 or using an intercom (if one is available); asking neighbors or maintenance workers 23 how to get access or when the person will likely be back; leaving notes or papers; 24 and waiting outside a residence or returning at different times of day in the hope 25 of encountering the person to be served. See, e.g., De Kauwe v. Bergstrom, 2019 26 WL 2206202 , at *3 (Cal. App. 2. Dist., May 22, 2019);Calvert v. Al Binali, 29 Cal. 27 App. 5th 954, 958 (Cal. App. 2 Dist. 2018); Carter v. Anderson, 2007 WL 2713833 , 28 at *4 (Cal. App. 4 Dist., Sept. 19, 2007). 1 The response also does not show reasonable diligence, which would be 2 required before Rutherford could use the procedure outlined in Cal. Corp. Code 3 § 1702(a). The process server’s single visit to the agent’s house, followed by two 4 visits to the wrong location do not amount to reasonable diligence. Am. Exp. 5 Centurion Bank v. Zara, 199 Cal. App. 4th 383, 389 (2011) (“Two or three attempts 6 to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable 7 diligence.’”) 8 The error of serving the restaurant instead of the Mall might have been 9 caused initially by an ordinary mix-up. The response does not explain the 10 miscommunication, but regardless of how it happened, it is Rutherford’s 11 responsibility. See Dale v. ITT Life Ins. Corp., 207 Cal. App. 3d 495 , 501–02 (Cal. 12 App. 4 Dist. 1989) (holding that a process server hired by a plaintiff is the plaintiff’s 13 agent, and the plaintiff is responsible for the process server’s acts). But more 14 significantly, Rutherford’s failure to notice the repeatedly defective attempts at 15 service resulted in a long delay that amounts to inexcusable neglect. Rutherford 16 is charged with notice of the process server’s acts. Id. at 501 . But here, he also 17 had actual notice in the form of two returns of service that, if he had read them with 18 reasonable care, would have made clear that the Mall was not properly served. 19 (Docket nos. 4 and 9.) His failure to do so is not excusable, particularly because 20 he filed them in the docket and relied on them to seek entry of default against the 21 Mall (see Docket no. 11), thereby certifying to the Court that he had read and 22 understood them. See Fed. R. Civ. P. 11(b)(2) and (3). 23 The response does not show good cause for Rutherford’s failure to serve the 24 Mall within the time limit set by Fed. R. Civ. P. 4(m). And the alternative method of 25 service Rutherford proposes to use would not be adequate, because he has not 26 been reasonably diligent. 27 This action is therefore DISMISSED WITHOUT PREJUDICE for failure to 28 serve the Mall. See Fed. R. Civ. P. 4(m). Rutherford’s request to withdraw his 1 ||request for entry of default is DENIED AS MOOT, because the Court has already 2 ||ruled on that request. [3] 4 IT IS SO ORDERED. 5 ||Dated: August 16, 2019 6 / Mit 4. (Bgl 7 Hon. Lafry Alan Burns 8 Chief United States District Judge