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Sociedad de Produccion Rural de Responsabilidad Limitada Huehuetan v. Golden Fruit Co. LLC

United States District Court, D. Arizona

June 29, 2016

Sociedad de Produccion Rural de Responsabilidad Limitada Huehuetan, Plaintiff,
v.
Golden Fruit Company LLC, Defendant.

          ORDER

          Eric J. Markovich United States Magistrate Judge

         Pending before the Court is Plaintiff’s Motion for Alternative Service pursuant to Fed.R.Civ.P. 4(e) and (h) and Cal. Corp. Code § 1702. (Doc. 7). Plaintiff requests an order authorizing alternative service of the Summons, Complaint, and this Order by: (1) hand delivery to the California Secretary of State, pursuant to Cal. Corp. Code § 1702; (2) first-class U.S. mail, and by certified mail, return receipt requested, to Jose Eduardo Francis Alarcon, Golden Fruit’s statutory agent, at 1631 Rossin Ct., Chula Vista, CA 91913-1713; (3) first-class U.S. mail and by certified mail, return receipt requested, to Raul Nava, Golden Fruit’s owner, at P.O. Box 531921, San Diego, CA 92153; and (4) first-class U.S. mail and by certified mail, return receipt requested, to Jason E. Turner of the J. Turner Law Group, APC, 823 Anchorage Pl., Chula Vista, CA 91914. Id. at 2. Plaintiff states that it will file Affidavits of Service with the Court upon completion of these actions. Plaintiff also requests an award of costs and attorneys’ fees incurred in attempting service and in bringing the present motion.

         To date, no defendant has appeared in this action.

         I. Background

         This Perishable Agricultural Commodities Act (“PACA”) case was instituted by Plaintiff Sociedad de Producciόn Rural de Responsabilidad Limitada Huehuetan on April 21, 2016 against Defendant Golden Fruit Company, LLC. (Doc. 1). The Complaint alleges that Defendant failed to pay Plaintiff the agreed-upon purchase price for an order of Karla bananas. Id. at 2. Plaintiff filed a complaint with the U.S. Department of Agriculture, and on February 19, 2016 the Office of the Secretary of Agriculture entered a Decision and Order in favor of Plaintiff and ordered Defendant to pay $267, 982.18, with interest at the rate of .51% per annum from February 19, 2016 until paid, plus the amount of $500.00. Id. at 2-3. Plaintiff alleges that, to date, Defendant has made no payments for the amounts owed. Plaintiff’s Complaint seeks enforcement of the PACA award and attorneys’ fees.

         Pursuant to Fed.R.Civ.P. 4(m), a defendant must be served within 90 days of the filing of the complaint. Accordingly, the time for service in this action expires on July 21, 2016.

         Plaintiff alleges it has repeatedly attempted to obtain a waiver of service from Defendant’s counsel, Jason E. Turner, but has received no response from Mr. Turner. (Doc. 7 at 1). Plaintiff also attempted to serve Defendant at the last known address of its statutory agent, Jose Eduardo Francis Alarcon, at 1540 Gold Run Road, Chula Vista, CA 91913, but learned that Mr. Alarcon is not associated with that address. Id. Plaintiff then learned that Mr. Alarcon resides and/or accepts mail at 1631 Rossin Ct., Chula Vista, CA 91913-1713, but has been unsuccessful in its repeated attempts to serve Mr. Alarcon at this address. Id. at 2. Plaintiff notes that “the process server indicated that one or more person was present at the residence at the time of the attempted services, but may have been evading service on one or more occasions.” Id.

         Plaintiff requests an order allowing alternative service because it “has been unable to personally serve Defendant Golden Fruit at either of its statutory agent’s last known addresses, and is unlikely to succeed in doing so in the future.” Id.

         II. Alternative Service

         Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of the summons and complaint must be satisfied. Omni Capital Int'l., Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987), superseded by statute on other grounds by S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007). Because service of process is the means by which a trial court obtains jurisdiction over a person, “[a] person is not bound by a judgment in a litigation to which he or she has not been made a party by service of process.” Mason v. Genisco Technology Corp., 960 F.2d 849, 851 (9th Cir. 1992). Rule 4, Fed.R.Civ.P., governs the service of process in federal courts. “A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4.” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). Unless extended by the district court, the plaintiff must serve the defendant with a copy of the summons and complaint within 90 days of filing the complaint. Fed.R.Civ.P. 4(m).

         Federal Rule of Civil Procedure 4(h) addresses service of process on a legal entity, such as a corporation, partnership, or limited liability company, within or outside a judicial district of the United States. It provides that unless otherwise provided by federal law or a defendant’s waiver of service under Rule 4(d) has been filed, a person or legal entity may be served:

(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so ...

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