United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
Nancy Watts and Frank Simoncini have filed a motion for entry
of default against Defendant Kaizen de Mexico
(“Kaizen”). Docs. 21, 29. Defendant Hans
Truesdell has filed a response to which Plaintiffs have
replied. Docs. 34, 36. No. party requests oral argument or an
evidentiary hearing. For reasons stated below, the Court will
grant the motion.
cases arise from title issues relating to condominiums
Plaintiffs purchased in the Bella Sirena development in
Puerto Peñasco, Mexico. Plaintiffs filed state court
actions against Truesdell, his wife Mariam Hernandez Mendoza,
Kaizen, and Pelican Partners International
(“Pelican”), the Bella Sirena developer.
Plaintiffs allege that Defendants engaged in a fraudulent
scheme by which Plaintiffs were induced to pay unnecessary
legal fees to Kaizen to defend their titles from liens placed
on the properties. Plaintiffs assert consumer fraud,
negligent misrepresentation, and breach of fiduciary duty
claims against Truesdell, Hernandez, and Kaizen (Counts 1, 2
and 5), breach of contract and breach of covenant of good
faith and fair dealing claims against Kaizen (Counts 3 and
4), and state RICO claims against all Defendants (Count 6).
cases were removed to this Court and consolidated. Doc. 8.
The RICO claims were dismissed. Docs. 15, 16. Truesdell and
Hernandez filed answers. Docs. 8, 17, 38, 39. The cases were
reassigned to the undersigned judge on May 29, 2019. Doc. 45.
contend that on March 8, 2017, they properly served process
on Kaizen in Arizona by delivering the summonses and
complaints to Truesdell, an officer of Kaizen. Doc. 21 at
1-2; see Doc. 20 at 6, 12 (affidavits of service).
Kaizen has not answered or otherwise responded to the
complaints. Plaintiffs seek the entry of Kaizen's default
pursuant to Federal Rule of Civil Procedure 55(a).
Service of Process on a Foreign Business Entity.
of process can be effected on a foreign corporation through
delivery of the summons and complaint to ‘an officer, a
managing or general agent, or any other agent authorized by
appointment or by law to receive service of
process.'” Jones v. Bank of Am. NA, No.
CV-17-08231-PCT-SMB, 2018 WL 6831961, at *1 (D. Ariz. Dec.
28, 2018) (quoting Fed.R.Civ.P. 4(h)(1)(B)); see
Fed. R. Civ. P. 4(e)(1), (h)(1)(A) (service may be made in a
judicial district of the United States by following state law
for serving a summons); Ariz. R. Civ. P. 4(i) (a foreign
business entity “may be served by delivering a copy of
the summons and the pleading being served to a partner, an
officer, [or] a managing or general agent”); Mach 1
Air Servs., Inc. v. Mainfreight, Inc., No. CV-14-
01444-PHX-SPL, 2015 WL 11181334, at *2 n.4 (D. Ariz. Mar. 5,
2015) (noting that the requirements for serving foreign
corporations are the same under federal and Arizona law).
“Once service is challenged, plaintiffs bear the burden
of establishing that service was valid[.]”
Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.
2004); see Mach 1, 2015 WL 11181334, at *2; EFX
Performance Inc. v. Lindley, No. SACV 10-01261-JVS
(AGRx), 2011 WL 13227775, at *3 (C.D. Cal. Jan. 4, 2011)
(plaintiffs must show valid service by a preponderance of the
evidence); Nicks v. Brewer, No. 10-CV-1220-JAR-JPO,
2010 WL 4868172, at *4 (D. Kan. Nov. 23, 2010) (same). The
reviewing court may consider declarations and other evidence
in determining whether service was valid. See Benson v.
750 Pine Mgmt., LLC, No. CV-18-9199 PSG (GJSx), 2019 WL
1744853, at *2 (C.D. Cal. Feb. 7, 2019).
Service of Process on Kaizen Was Valid.
present sworn declarations showing that Truesdell is a Kaizen
officer. Doc. 29-1. Watts states that in June 2010, Pelican
informed her that liens had been placed on her condominium
and it was her responsibility to defend against a seizure
lawsuit. Pelican recommended that she contact Truesdell to
retain Kaizen's legal services. Watts called Kaizen and
spoke with Truesdell. He explained that he and his wife own
Kaizen and offered to remove the liens from the property.
Id. at 2-3.
months later, Watts met with Truesdell and Hernandez in
Arizona to discuss Kaizen's services. Truesdell stated
that he was Kaizen's CEO and Hernandez was the
company's CFO. Truesdell explained that Kaizen had a
legal strategy to defeat the seizure action against
Watts's condominium and that Kaizen represented other
Bella Sirena property owners facing similar lawsuits.
Id. at 3-4.
on these representations, Watts met with Truesdell and
Hernandez in Mexico to further discuss the scope of
Kaizen's representation. Truesdell presented Watts with a
Kaizen contract for services, which she signed. Watts
frequently contacted Truesdell regarding Kaizen's
progress on the case until she terminated Kaizen's
services in June 2015. Id. at 4; Doc. 1-2 at 8.
Watts had no dealings with any other Kaizen personnel except
for the attorney Kaizen hired to help with her case. Doc.
29-1 at 5. Watts understood Truesdell to be the principal
officer of Kaizen at all relevant times. Id.
had a similar experience. He states that in August 2010,
Truesdell called him on behalf of Kaizen to discuss a group
legal effort to oppose the seizure of Bella Sirena
properties. The next month, Simoncini met with Truesdell and
Hernandez in Arizona to discuss Kaizen's legal strategy.
Truesdell made clear that he and Hernandez operated Kaizen.
Id. at 7-8.
rarely received updates from Truesdell in the ensuing years,
but managed to arrange a meeting with him in late 2015 to
discuss the status of the case. Simoncini never met or
communicated with anyone from Kaizen other than Truesdell and
Hernandez. During this entire time, Simoncini understood
Truesdell to be the principal officer of Kaizen. Id.
at 8-9. Simoncini and Watts ...