Shaw v. Brazell
- Susan Van Keulen
- 5:19-cv-08103
- U.S. District Court · Northern District of California
- 4
In Shaw v. Brazell, Judge Van Keulen denied without prejudice permission to serve two defendants by publication but extended the service deadline.
Cecil Eugene Shaw and Richard L. Brazell and Joan K. Brazell. The order denied Shaw’s requested service method but gave him until May 11, 2020, to complete service or renew the motion with additional evidence.
What happened
In Shaw v. Brazell, Cecil Eugene Shaw asked to serve Richard L. Brazell and Joan K. Brazell by publishing notice in a newspaper. Shaw’s lawsuit alleges violations of the Americans with Disabilities Act and California’s Unruh Civil Rights Act; another defendant had already been served and answered.
The court found that Shaw had not shown enough effort to locate and serve the Brazell defendants in another way. Although a search found six addresses, a process server tried only one address, and other efforts did not establish a thorough search. Shaw also did not provide evidence that the proposed newspaper was likely to give the defendants actual notice.
Judge Susan Van Keulen denied the motion without prejudice. The court extended Shaw’s deadline to May 11, 2020, so he could complete service or renew the motion with more supporting evidence.
The detailed version
- Shaw v. Brazell · No. 5:19-cv-08103
- Susan Van Keulen
- Mar. 25, 2020
Background
Cecil Eugene Shaw sued RJC Spirits, Inc., Richard L. Brazell, and Joan K. Brazell, alleging violations of the Americans with Disabilities Act and California’s Unruh Civil Rights Act. The court issued summonses for all defendants. RJC Spirits was served and filed an answer. After seeking more time to serve the Brazell defendants, Shaw received a 30-day extension through March 12, 2020, and then moved for permission to serve them by publication.
Applicable law
Federal Rule of Civil Procedure 4 allows service under the law of the state where the federal court is located or where service occurs. Under California Code of Civil Procedure section 415.50, service by publication requires evidence that the defendant cannot be served through another permitted method despite reasonable diligence and that a valid cause of action exists against the defendant. Publication is intended as a last resort, and any order allowing it must identify a newspaper most likely to provide actual notice.
Court’s reasoning
The court found that Shaw had not shown reasonable diligence. His counsel used two database searches that produced six mailing addresses. A process server made seven attempts over approximately two weeks, but only at the Montevina Road address. An office assistant mailed notices to the listed addresses, called seven phone numbers, left voicemails at three numbers, and counsel emailed the Brazell defendants’ attorney asking whether he would accept service. The court concluded that these efforts were not exhaustive and that Shaw had not shown that he had pursued other ways to locate the defendants.
The court also found insufficient evidence that publication in “El Observador” would likely provide actual notice. The motion and supporting affidavit did not discuss that newspaper. The only reference appeared in a proposed order, which stated conclusorily that it was a newspaper of general circulation.
Disposition
The court denied without prejudice Shaw’s motion for permission to serve the Brazell defendants by publication. It granted Shaw an additional extension until May 11, 2020, to complete service or renew the motion with additional evidentiary support. This order addressed the method and timing of service, not the merits of Shaw’s underlying claims.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.