Floyd v. Saratoga Diagnostics, Inc.

Background

Louis Floyd filed a putative class action against Saratoga Diagnostics, Inc. and Thomas Pallone, alleging violations of the Telephone Consumer Protection Act. Floyd moved for permission to use alternative service methods after unsuccessful attempts to personally serve Saratoga and Pallone.

Saratoga’s corporate registration identified Pallone as its chief executive officer, secretary, chief financial officer, and agent for service of process. It listed Pallone’s home address as Saratoga’s address for service. A process server made nine attempts to serve Pallone there during March and April 2020. On one visit, a person identified as “John Doe,” described as a co-occupant, said Pallone was unavailable and refused to provide his name. The process server left the complaint and summons with John Doe and mailed copies to Pallone, but Floyd’s supporting declarations did not document the mailing attempt.

Service on Saratoga

Federal Rule of Civil Procedure 4 allows service on a domestic corporation by methods authorized under the law of the state where the federal court is located. California law permits service on a corporation’s designated agent or certain corporate officers. If the agent cannot be found with reasonable diligence, California Corporations Code section 1702(a) allows a court to authorize service through the California Secretary of State, but the plaintiff must establish the unsuccessful service efforts by affidavit.

The court found that the nine attempts supported a finding that Saratoga could not be served with reasonable diligence through personal delivery to Pallone, its designated agent. The attempts also supported the same finding as to service through the corporate officer and agent listed in Saratoga’s registration. The court further found that service through John Doe was not established as effective substitute service because Floyd could not determine whether John Doe was apparently in charge, as California law requires.

However, the court found that Floyd had not adequately established by affidavit that service by mail under California law was unsuccessful. The motion referred to mailing documents to Pallone, but the process server’s declarations did not mention or substantiate that attempt.

Service on Pallone

California law permits a court to direct service in a manner reasonably calculated to give the person actual notice. The court found that certified mail met that standard for Pallone. The nine unsuccessful attempts, the cars and voices observed at the property, and John Doe’s statement that Pallone was unavailable supported the conclusion that Pallone lived there and had avoided personal service. Certified mail therefore appeared reasonably calculated to provide actual notice.

Ruling

The court granted in part and denied in part without prejudice Floyd’s motion for alternative service. It denied without prejudice the request to serve Saratoga through the California Secretary of State. Floyd may refile that request with an affidavit showing that service by mail under California Code of Civil Procedure section 415.30 cannot be completed with reasonable diligence. The court granted the request to serve Pallone by certified mail.

Judge and date

The order was signed by United States District Judge Lucy Koh on June 5, 2020.