Acticon Technologies LLC v. Pretec Electronics Corporation et al

MOTION for Authorization to Serve Complaint and Summons

N.D. Cal.February 8, 2008

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- Plaintiff’s Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL) ROBERT J. YORIO (SBN 93178) yorio@carrferrell.com COLBY B. SPRINGER (SBN 214868) cspringer@carrferrell.com CHRISTINE S. WATSON (SBN 218006) cwatson@carrferrell.com CARR & FERRELL LLP 2200 Geng Road Palo Alto, California 94303 Telephone: (650) 812-3400 Facsimile: (650) 812-3444 Attorneys for Plaintiff ACTICON TECHNOLOGIES LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ACTICON TECHNOLOGIES LLC, Plaintiff, v. PRETEC ELECTRONICS CORPORATION, a dissolved California corporation; PTI GLOBAL, INC., a California corporation; CHIU FENG CHEN, an individual; GORDON YU, an individual; TOMMY HO, an individual; ROBERT WU, an individual; GRACE YU, an individual; KUEI LU, an individual; and DOES 1 through 20, Defendants. CASE NO. C 07-4507 JF (HRL) PLAINTIFF ACTICON TECHNOLOGIES LLC’S ADMINISTRATIVE MOTION FOR AUTHORIZATION TO SERVE COMPLAINT AND SUMMONS BY ALTERNATIVE MEANS AND EXTENSION OF TIME TO COMPLETE SERVICE I. INTRODUCTION ACTICON filed the Complaint in this action on August 20, 2007. Therefore, pursuant to Fed.R.Civ.P. 4(m), December 28, 2007 was the deadline for ACTICON to serve its Complaint and Summons on all of the defendants in the case. On December 20, 2007, the Court extended the time for ACTICON to complete service of process on certain defendants, including Defendant KUEI LU, for an additional sixty (60) days, and authorized ACTICON to effect service on KUEI LU through the combined alternative methods of (1) mailing the Complaint and Summons and (2) Case 5:07-cv-04507-JF Document 68 Filed 02/08/2008 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- Plaintiff’s Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL) leaving a copy of the Complaint and Summons at KUEI LU’s last known residence. See Order (Docket No. 47). II. FACTS On January 11, 2007, ACTICON completed service of the Complaint and Summons by the authorized alternative methods on the individual who, based on the results of its investigation, ACTICON believed to be Defendant KUEI LU. See Proof of Service of Process filed on January 16, 2008, (Docket No. 62). On January 15, 2008, counsel for ACTICON was contacted by an individual who represented herself to be one Kuei-Lan Margaret Lu and who was served with a copy of the Summons and Complaint in this matter. See Declaration of Christine S. Watson (“Watson Decl.”), at ¶3. This individual represented to counsel for ACTICON orally and in writing that she is not the KUEI LU named in the Complaint and that she has no affiliation with Defendants PRETEC ELECTRONICS CORPORATION and PTI GLOBAL, INC. Id. Although ACTICON has been unable to locate the residential address for the true Defendant KUEI LU, ACTICON is informed that since 2006, KUEI LU has been, and continues to be, the sole officer, director and one hundred percent owner of PTI GLOBAL, INC. See Answer of Defendant PTI Global, Inc., dated January 8, 2008, at ¶¶ 20, 80 (Docket No. 59); see Joint Case Management Statement dated January 17, 2008, at ¶¶ 5-19 (Docket No. 64). III. ARGUMENT A. Service By Mail And Leaving A Copy Of The Complaint And Summons At Defendant PTI GLOBAL, INC.’s Corporate Address Meets Constitutional Due Process Requirements. Due process requires that “[t]he means employed [to effect service of process] must be such as one desirous of actually informing the (defendant) might reasonably adopt to accomplish it.” Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 315. Due process does not require, however, personal service in every case or that the method utilized is most likely to reach the defendant. Green v. Lindsey (1982) 456 U.S. 444, 455. Rather, the method need only be “reasonably likely” to provide notice of the proceedings involving the defendant’s interests and an opportunity to be heard. Id.; see also Mullane, 339 U.S. at 314. Moreover, “extraordinary” efforts Case 5:07-cv-04507-JF Document 68 Filed 02/08/2008 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- Plaintiff’s Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL) to locate a defendant are not required and a plaintiff must simply undertake reasonably diligent efforts to locate a defendant. Mennonite Board of Missions v. Adams (1983) 462 U.S. 791, 798 (plaintiff need not hire a private investigator to locate the defendant). In this case, ACTICON hired a private investigator to locate the individual defendants, including Defendant KUEI LU. Despite ACTICON’s diligent efforts, it has been unable to locate a residential address for KUEI LU. However, KUEI LU is listed as Defendant PTI GLOBAL, INC.’s agent for service of process and is the company’s admitted one hundred percent owner and an officer and director of the company. See California Secretary of State Web Page, attached as Exhibit A to Watson Decl.; see also Statement of Information, dated December 5, 2006, attached as Exhibit O to the Declaration of Christine Watson in support of Acticon’s Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction (Docket No. 9). ACTICON is not constitutionally required to make extraordinary efforts exceeding those which it has already diligently pursued. Service by mail addressed to KUEI LU, in care of PTI GLOBAL, INC., is an appropriate and reasonable method of service based on the circumstances of this case. B. The Circumstances Of This Case Render Personal Service As Set Forth In Fed.R.Civ.Proc. 4(e)(2) Impossible. “Strict compliance is required with the rules governing manner of service.” Schwarzer, Tashima & Wagstaffe, Cal.Prac.Guide, Federal Civil Procedure Before Trial, §5:166 (The Rutter Group 2007). Federal Rule of Civil Procedure 4(e)(2) requires service of the complaint and summons by delivering copies of the documents to the defendants personally or by leaving the copies with persons of suitable age and discretion residing at the defendants’ usual places of abode. However, personal service on KUEI LU or leaving copies of the documents at her residence is infeasible without conducting extraordinary investigations into her location, which ACTICON is not required to do. Since ACTICON is quite likely to be unable to personally serve the true Defendant KUEI LU by the February 28, 2008 deadline imposed by the Court’s Order dated December 20, 2007, ACTICON respectfully requests authorization to serve Defendant KUEI LU by U.S. mail in an envelope addressed to KUEI LU in care of PTI GLOBAL, INC. ACTICON also requests Case 5:07-cv-04507-JF Document 68 Filed 02/08/2008 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- Plaintiff’s Administrative Motion for Alternative Service and Extension of Time C 07-4507 JF (HRL) authorization to serve Defendant KUEI LU by leaving a copy at PTI GLOBAL, INC.’s business address, 231 Whitney Place, Fremont, California 94539, which is also the company’s address for service of process. Given that KUEI LU is the sole officer, director and owner of PTI GLOBAL, INC. and that she is the registered agent for service of process at the same address as PTI GLOBAL, INC.’s corporate address, these alternative methods of service are reasonably likely to provide notice of the proceedings involving her interests and an opportunity to be heard. While these combined methods of service would satisfy due process, they do not satisfy the statutory requirements of Fed.R.Civ.P. 4(e)(2), however, and as a result, ACTICON is required to seek relief from the Court. IV. CONCLUSION Based on the foregoing, ACTICON respectfully requests that the Court authorize ACTICON to serve the Complaint and Summons in this action on Defendant KUEI LU by U.S. mail addressed to PTI GLOBAL, INC. and by leaving a copy of the Complaint and Summons at PTI GLOBAL, INC.’s address. Respectfully submitted, Dated: February 7, 2008 CARR & FERRELL LLP By: /s/ Christine S. Watson ROBERT J. YORIO COLBY B. SPRINGER CHRISTINE S. WATSON Attorneys for Plaintiff ACTICON TECHNOLOGIES LLC Case 5:07-cv-04507-JF Document 68 Filed 02/08/2008 Page 4 of 4