Pension Benefit Guaranty Corporation v. Litvak
- Thomas Hixson
- 3:24-cv-01532
- U.S. District Court · Northern District of California
- 4
In Pension Benefit Guaranty Corporation v. Litvak, Judge Hixson authorized alternative service after unsuccessful attempts to serve Litvak.
The order directly affects PBGC’s ability to serve Vladmir Litvak and sets the methods and deadline for completing service; it does not decide the alleged ERISA violations.
What happened
Pension Benefit Guaranty Corporation v. Litvak concerns the Pension Benefit Guaranty Corporation’s efforts to serve Vladmir Litvak with a lawsuit alleging violations of the Employee Retirement Income Security Act. Several attempts at personal service, mail, and delivery were unsuccessful.
The Pension Benefit Guaranty Corporation asked to serve Litvak by posting documents at his last known address and sending them by email. The court found that the efforts had been diligent, that further personal service would be futile, and that the proposed methods were reasonably likely to give Litvak notice.
Judge Hixson granted the application for alternative service. He authorized posting, certified mail, and email service, and extended the deadline for completing service to July 24, 2024.
The detailed version
- Pension Benefit Guaranty Corporation v. Litvak · No. 3:24-cv-01532
- Thomas Hixson
- June 25, 2024
Background
The Pension Benefit Guaranty Corporation (PBGC), acting as statutory trustee of the Volk Electric Inc. Retirement Plan, filed an action under Title IV of the Employee Retirement Income Security Act of 1974. PBGC seeks to recover losses allegedly caused by Vladmir Litvak’s violations of that statute.
PBGC made multiple unsuccessful attempts to serve Litvak personally at his last known address and at another address identified through a database report. PBGC also sent Litvak an email containing the summons and complaint, asking him to provide an address for service. Litvak did not respond. PBGC sent correspondence by certified mail and FedEx to the last known address; the certified mail was confirmed delivered, and the FedEx package was also confirmed delivered. Additional attempts by a process server at that address were unsuccessful.
PBGC applied for permission to use alternative service, arguing that further attempts at personal service would be futile. It requested permission to post the documents at the last known address and send them by email.
Legal standard
Federal Rule of Civil Procedure 4 governs service of a summons and complaint. Federal law permits service on an individual under applicable state-law methods. California law also allows a court to direct another method when that method is reasonably calculated to give the person actual notice of the action and an opportunity to respond. Due process requires notice methods that are reasonably calculated, under the circumstances, to inform interested parties that an action is pending.
Court’s analysis
The court found that PBGC had been diligent because it had tried personal service, U.S. mail, and FedEx. Because those efforts had failed, the court determined that further personal-service attempts would be futile and that alternative service was necessary. The court also relied on decisions allowing service by posting documents on a residence and by email when the plaintiff had acted diligently and email was reasonably calculated to provide actual notice.
Ruling
Judge Thomas S. Hixson granted PBGC’s application to serve Litvak by alternative means. The order required PBGC to have a process server:
- Post the complaint, summons, and order on the front door of 899 Avenue H, San Francisco, California 94130;
- Mail the complaint, summons, and order to Litvak at that address by certified mail; and
- Email the complaint, summons, and order to the email address previously used in communications between PBGC and Litvak.
The court extended PBGC’s deadline to complete service to July 24, 2024. The order also set a case management conference for September 26, 2024, at 10:00 a.m. by video conference.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.