Opinion
NO. CIV. S-01-2301 FCD/JFM.
February 22 2002
MEMORANDUM AND ORDER
This matter is before the court on plaintiff United States of America's ex parte motion for court directed service of process on defendant Rose Moreno-Padilla. Specifically, the government moves, pursuant to Federal Rule of Civil Procedure 4(f)(3), to serve defendant, who is believed to reside in Mexico, via an attorney who is currently representing her in another suit in Sacramento County and at the address of her daughter Julie Padilla who resides in Sacramento. The government does not have a current address for defendant in Mexico. Alternatively, the government requests an order for service by publication as provided in California Code of Civil Procedure 415.50.
The government makes this motion ex parte because no other party to the case has entered an appearance.
Unless otherwise stated, all further references to a "Rule" are to the Federal Rules of Civil Procedure.
For the following reasons, the government's motion is GRANTED.
The government noticed the motion for hearing on March 15, 2002. However, because the court finds that oral argument will not be of material assistance, it orders the motion submitted on the papers. E.D. Cal. L.R. 78-230(h).
This action seeks to reduce to judgment outstanding federal tax assessments and foreclose federal tax liens that attach against certain real property. Defendant is one of the persons whose assessments the government seeks to reduce to judgment, and one of the persons who may assert an interest in the land. After making various inquiries, the government now believes defendant is residing in Mexico; however, it does not know where in Mexico. See Schrock Decl., filed Feb. 19, 2002. The government nonetheless has confirmed two addresses of persons who are likely in contact with defendant: (1) an attorney in Sacramento, Richard Staff, who is currently representing defendant in another matter pending in Sacramento County Superior Court and (2) defendant's daughter, Julie Padilla, who resides in Sacramento. Id. at ¶¶ 5-6. The government thus requests that the court direct personal service on these individuals and deem that service adequate service on defendant under Rule 4.
The attorney's address is: Richard Staff, 721 9th Street, Suite 350, Sacramento, CA 95814. Defendant's daughter's address is: Julie Padilla, 4732 "T" Street, Sacramento, CA 95819. Pl.'s Mem. of P. A., filed Feb. 19, 2002, at 2:9-12.
Rule 4(f)(3) provides that service upon an individual in a foreign country may be accomplished "by other means not prohibited by international agreement as may be directed by the court." Here, the Inter-American Convention on Letters Rogatory applies. See Ex. C to Schrock Decl. This treaty provides one method of service, letters rogatory, on defendants residing in Mexico, but it does not preempt all other means of service. Kreimerman v. Casa Veerkamp, 22 F.3d 634, 643-44 (5th Cir. 1994) (the treaty states it shall apply to letters rogatory but it does not state that letters rogatory are the only means of serving process in the signatory countries). Thus, the court may direct service by other means. In that regard, the Ninth Circuit has held that "Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint." Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988) (internal quotations omitted).
Here, the government seeks to serve defendant by personally delivering a copy of the summons and complaint to both defendant's daughter and defendant's attorney, currently representing defendant in another matter. The government also indicates that it will forward to these individuals, along with the summons and complaint, a letter requesting that the recipient forward the summons and complaint to defendant, and offering to send copies directly to defendant's residence if the recipient provides the government with defendant's address. Other courts have granted similar requests. See Ex. B to Schrock Decl. (in a currently pending case in state court against defendant, the state court directed service to be made, in part, by serving defendant's brother); see also Forum Financial Grp., LLC v. Harvard College, 199 F.R.D. 22 (D. Me. 2001) (directing service on a defendant residing in Russia to be made on the defendant's attorney representing him in another matter).
The court finds that this case presents similar circumstances. Accordingly, the court deems an acceptable method of service on defendant Rose Moreno-Padilla to be personal service of a copy of the summons and complaint on her daughter and her attorney in another matter. Such service is reasonably calculated to provide defendant with sufficient notice of this action. Fed.R.Civ.P. 4(f). The government thus shall personally serve Richard Staff and Julie Padilla with a copy of the summons and complaint issued to defendant, along with a letter requesting that the recipient forward the summons and complaint to defendant and offering to directly mail process to defendant if the recipient provides the government with defendant's address. The government's alternative request for service by publication is moot.
IT IS SO ORDERED.