Hernandez v. Srija, Inc.
- Laurel Beeler
- 3:19-cv-01813
- U.S. District Court · Northern District of California
- 6
In Hernandez v. Srija, Judge Beeler denied without prejudice Hernandez’s application to serve Chang by publication because no sworn affidavit showed a claim.
Gerardo Hernandez’s request to serve Carol Lynn Chang by publication was denied without prejudice; the opinion also concerned Srija, Inc., which had been served and had answered.
What happened
In Hernandez v. Srija, Inc., Gerardo Hernandez sued Srija, Inc. and Carol Lynn Chang under the Americans with Disabilities Act, alleging that a Subway store was not wheelchair accessible. Srija was served and answered, but Hernandez was unable to serve Chang after multiple attempts and believed she was avoiding service.
Hernandez asked to serve Chang by publishing notice in a newspaper. The court denied the request without prejudice because California law required a sworn affidavit showing that Hernandez had a legal claim against Chang or that Chang was a necessary or proper party, and the submitted affidavits did not provide that evidence.
Judge Beeler also questioned whether Hernandez had tried all reasonable ways to locate and notify Chang, including asking Srija for contact information, but she did not decide that issue. Hernandez may renew the publication request.
The detailed version
- Hernandez v. Srija, Inc. · No. 3:19-cv-01813
- Laurel Beeler
- Sept. 16, 2019
Background
Gerardo Hernandez sued Srija, Inc., doing business as Subway #32364, and Carol Lynn Chang, Trustee of the Red Envelope Trust, under Title III of the Americans with Disabilities Act of 1990. He alleged that Subway #32364 was not wheelchair accessible. The opinion states that Chang owns the lot where the Subway store is located. Hernandez served Srija, and Srija answered the complaint.
Hernandez made multiple attempts to serve Chang at her purported residence. A process server attempted service fifteen times between April 9 and June 21, 2019, conducted stakeouts, requested a postal trace, and made additional attempts through August 2, 2019. The postal-trace report stated that mail sent to the address was deliverable. Hernandez believed Chang was evading service and asked to serve her by publication in a newspaper of general circulation in San Carlos.
Legal standard
Federal Rule of Civil Procedure 4(e) allows service on an individual by methods permitted by the law of the state where the federal court is located or where service occurs. Under California law, service by publication is permitted only if the plaintiff shows by affidavit that the defendant cannot be served by another permitted method with reasonable diligence. The plaintiff must also show by affidavit that a cause of action exists against the defendant or that the defendant is a necessary or proper party. The affidavit must provide independent factual support and be signed by someone with personal knowledge of the essential facts.
Ruling
The court held that Hernandez had not filed an affidavit demonstrating that he had a claim against Chang. Although the filings described the efforts by the process server and Hernandez’s attorney to serve Chang, none supplied independent evidentiary support for the existence of a cause of action against her. The court therefore denied without prejudice Hernandez’s application to serve Chang by publication.
The court separately questioned whether Hernandez had shown that Chang could not be served by another method with reasonable diligence. In particular, the court noted that Hernandez did not say whether he had asked Srija, which had appeared in the case, for Chang’s contact information, or whether he had tried contacting Chang by telephone or mailing her the summons and complaint. The court expressly did not decide that issue. The denial without prejudice left open the possibility of a renewed request.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.