Nobles v. Kern

Background

Kathleen Nobles sued Fred M. Kern and Plum Holdings, LLC, alleging one count of breach of contract. Kern’s answer asserted counterclaims and crossclaims against Nobles and her son, third-party defendant Brenton A. Hering. Hering was named in Kern’s pleading on December 12, 2019, and summons was issued for him the next day.

The court later ordered Kern and Plum Holdings to provide proof that Hering had been served or explain why Hering should not be dismissed for failure to serve. Kern responded with a verified motion asking for permission to serve Hering by publication. Kern said Hering was avoiding service, that an attorney for Hering in an unrelated matter would not accept service or provide Hering’s location, that information from Hering’s mother was no longer valid, and that two private investigators had been unable to locate him. Kern also asserted that Hering might be living in and driving a recreational vehicle somewhere in the United States or Canada. Nobles objected, arguing that Kern had waited 125 days after the service deadline and that more time would delay the case.

Motion for service by publication

Federal Rule of Civil Procedure 4(e)(1) permits service in a federal district by following the law of the state where the court is located or where service is made. Under California law, service by publication requires a showing that the person cannot reasonably be served in another specified manner. The requesting party must also show that it diligently attempted to provide notice and submit sworn factual support showing that a legal claim exists against the person or that the person is a necessary or proper party. Because of due-process concerns, service by publication is treated as a last resort.

The court denied Kern’s motion for two reasons. First, Kern did not show reasonable diligence. The 90-day deadline for service under Rule 4(m) expired on March 11, 2020. Kern did not request an extension or alternative service before that deadline and filed his motion only after the court issued its order to show cause, on the last day allowed for his response. His attorney also did not state when service attempts were made or show that they occurred during the 90-day period. The court therefore found no basis to conclude that Kern acted with reasonable diligence.

Second, the court found that Kern had not provided the required sworn factual support for the existence of a claim against Hering. Although the court treated Kern’s verified motion as an affidavit, the motion supported only Kern’s efforts to locate and serve Hering; it did not provide independent evidence supporting a cause of action against Hering. The court therefore denied Kern’s motion for leave to serve Hering by publication.

Dismissal of the crossclaims

Rule 4(m) requires a court to dismiss an action against a defendant who is not served within 90 days, or order service within a specified time, unless the plaintiff shows good cause. The court applied that rule to Kern’s crossclaims because Hering was first named in Kern’s pleading on December 12, 2019. The service period expired on March 11, 2020.

The court found that Kern neither served Hering by the deadline nor requested an extension. It also found that Kern failed to show good cause because he waited until the court’s deadline to respond to the order to show cause before raising his service difficulties and did not sufficiently explain the delay. The court concluded that giving Kern more time would be futile, would delay the case, and could prejudice Nobles. The court therefore dismissed Kern’s crossclaims against Hering without prejudice.

Disposition

The court DENIED Kern’s motion for leave to serve Hering by publication and DISMISSED Kern’s crossclaims against Hering WITHOUT PREJUDICE.