Malachowski v. Doheny
- James Donato
- 3:21-cv-05751
- U.S. District Court · Northern District of California
- 3
In Malachowski v. Doheny, Judge Demarchi denied publication service because Malachowski had not shown sufficient efforts to locate Doheny or facts supporting his claims.
Mark Malachowski’s request to serve Romona A. Doheny by publication was denied. Malachowski had until December 29, 2021, to serve Doheny, or the action might be dismissed without prejudice.
What happened
In Malachowski v. Doheny, Mark Malachowski asked the court to let him serve Romona A. Doheny by publishing the summons. He was representing himself.
Judge Demarchi denied the request for two reasons: Malachowski did not show that he had made enough honest efforts to find Doheny, and he did not provide sworn facts independently supporting a claim against her.
The court gave Malachowski until December 29, 2021, to serve Doheny and warned that failing to do so might lead to dismissal without prejudice. Judge Demarchi also moved the initial case-management conference to February 15, 2022.
The detailed version
- Malachowski v. Doheny · No. 3:21-cv-05751
- James Donato
- Nov. 30, 2021
Background
Mark Malachowski, acting without a lawyer, filed an ex parte application—a request made without the other side participating at that stage—for permission to serve the summons on Romona A. Doheny by publication. He relied on Federal Rule of Civil Procedure 4(e)(1), which allows service under the law of the state where the federal court sits or where service occurs. Because service had not occurred in any state, the court applied California law, including California Code of Civil Procedure section 415.50.
Reasons for the ruling
The court denied the application for two reasons. First, Malachowski’s declaration did not show that he had used reasonable diligence to locate Doheny. California law generally requires several honest attempts to learn a defendant’s whereabouts through likely sources, such as relatives, friends, acquaintances, an employer, directories, voter records, and property records near the defendant’s last known location. The court noted that the materials appeared to suggest Doheny lived in Connecticut, but did not show any effort to learn her Connecticut address or serve her there.
Second, the court said that a request for service by publication must include independent evidence, in a sworn statement of facts, showing that a legal claim exists against the person to be served. Malachowski did not expressly state that the complaint’s allegations were based on his personal knowledge, and his supporting declaration did not state the facts supporting a claim against Doheny.
Disposition and next steps
The court denied Malachowski’s ex parte application for an order directing service of the summons by publication. It gave him until December 29, 2021, to serve Doheny and stated that failure to do so might result in dismissal of the action without prejudice under Federal Rule of Civil Procedure 4(m). The court also continued the initial case-management conference from December 7, 2021, to February 15, 2022, at 1:30 p.m. The order was signed by Virginia K. Demarchi, United States Magistrate Judge.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.