Johnson v. Van Phan

Background

Scott Johnson filed a disability-access lawsuit against Qui Van Phan, identified in the opinion as the owner of Bo Gia restaurant in San Jose, California. Johnson moved for default judgment. Judge Jeffrey S. White referred that motion to the undersigned judicial officer for resolution.

Johnson’s proof of service stated that a process server delivered the complaint, summons, and other documents to “Ly ‘Doe,’ Person Apparently in Charge” at the restaurant’s address on January 19, 2022. Johnson mailed the documents to that address on March 15, 2022.

Service and Jurisdiction

Before entering default judgment, a federal court must examine whether it has subject-matter jurisdiction and personal jurisdiction over the defendant. Proper service under Federal Rule of Civil Procedure 4 is necessary for jurisdiction over the defendant.

Rule 4 allows service on an individual either by following the law of the state where the federal court is located or where service is made, or by personally delivering the papers, delivering them to an authorized agent, or leaving them at the person’s dwelling or usual place of residence with a suitable resident.

California law permits substitute service when the defendant cannot be personally served despite reasonable diligence. The papers may then be left at the person’s home, usual residence, usual place of business, or usual mailing address with a competent adult household member or a person apparently in charge who is informed of the papers’ contents. A copy must also be mailed to that address.

The court found that Johnson’s motion did not address whether service was adequate. The proof of service and supporting declarations did not identify any earlier attempts to personally serve Phan, suggesting that substitute service may have been Johnson’s only service attempt. The record also did not show that the restaurant address was Phan’s dwelling or usual place of residence for purposes of the federal service rule.

Order

The court ordered Johnson to show cause in writing by August 25, 2022, why the undersigned should not recommend denial of his motion for default judgment for lack of jurisdiction. Johnson was directed to provide documentation, including a sworn declaration if needed, showing that he exercised the required reasonable diligence before using substitute service or that his service otherwise satisfied due-process requirements.

The August 25 hearing on the motion was vacated and could be reset later if necessary. The order did not itself grant or deny the default-judgment motion.