Garcia v. Saffarian
- Maxine Chesney
- 3:21-cv-06451
- U.S. District Court · Northern District of California
- 4
In Garcia v. Saffarian, Judge Chesney denied Garcia’s request to serve Saffarian by publication without prejudice.
Orlando Garcia’s request for an alternative method of serving Reza Saffarian was denied without prejudice, while the court gave Garcia additional time to complete service and deferred ruling on whether to dismiss the case for failure to prosecute.
What happened
In Garcia v. Saffarian, Orlando Garcia told the court he had been unable to serve Reza Saffarian and asked to serve him by publishing the summons. The court had also previously ordered Garcia to explain why the case should not be dismissed for lack of progress.
Judge Chesney found that Garcia had tried several methods, including database searches, a process server, and mailed and emailed notices. But Garcia had not shown that he checked other likely sources, tried serving Saffarian at the EZ Laundry property, asked people there about Saffarian, or allowed enough time for the mailed acknowledgment process. Garcia also did not provide a sworn statement based on personal knowledge showing that he had a valid claim against Saffarian.
Judge Maxine M. Chesney denied Garcia’s application to serve Saffarian by publication, without prejudice. The court deferred its ruling on the order to show cause and gave Garcia until April 6, 2022, to serve Saffarian and until April 7, 2022, to file proof of service.
The detailed version
- Garcia v. Saffarian · No. 3:21-cv-06451
- Maxine Chesney
- Mar. 4, 2022
Background
The court had previously directed Orlando Garcia to explain why the case should not be dismissed for failure to prosecute. Garcia responded that he had been unable to serve Reza Saffarian and applied for permission to serve the summons by publication.
Service Attempts
Under Federal Rule of Civil Procedure 4(e)(1), an individual may be served under the law of the state where the federal court is located or where service occurs. California law permits service by publication when the defendant cannot be served through another authorized method despite reasonable diligence and when the plaintiff provides an affidavit showing that a cause of action exists.
Garcia submitted a declaration from his counsel describing several efforts to locate and serve Saffarian. A database search identified property associated with Saffarian, the business “EZ Laundry,” a mailing address, and two email addresses. A process server made multiple unsuccessful attempts at the mailing address. Garcia then sent notices of acknowledgment and receipt to the mailing address and email addresses.
The court held that these efforts did not establish reasonable diligence. Garcia had not shown that he searched other likely sources, such as Saffarian’s relatives, friends, acquaintances, or employer. Although Garcia asserted that Saffarian owned the property where EZ Laundry operated, he had not attempted service at that location or asked employees or others there about Saffarian’s whereabouts. The court also noted that the 20-day period for Saffarian to return the mailed acknowledgment without becoming liable for service costs had not yet expired.
Evidence of a Cause of Action
The court also held that Garcia had not supplied the required affidavit showing that a cause of action existed against Saffarian. The counsel’s declaration did not include independent sworn facts supporting the claim and did not purport to be based on counsel’s personal knowledge.
Ruling
Judge Maxine M. Chesney denied Garcia’s application for an order permitting service by publication. The denial was without prejudice. The court deferred ruling on the February 7 order to show cause and directed Garcia to serve Saffarian with the summons and complaint by April 6, 2022, and file proof of service by April 7, 2022.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.