Walsh v. Blackline Partners, LLC

Background

Martin J. Walsh, identified in the opinion as Secretary of Labor for the United States Department of Labor, sued Mark Kubinski, Blackline Partners LLC, and the Blackline Partners LLC 401(k) Plan. The complaint alleged that Kubinski and Blackline violated fiduciary duties to the plan.

The Secretary asked the court to authorize alternative service by email at the address Kubinski used to communicate with the Secretary’s counsel. The Secretary also requested that the scheduled case-management conference be continued. No response to the motion was received.

The Secretary had sent the complaint, summons, and other case-initiation documents by mail and email. Kubinski had communicated with the Secretary’s counsel by email and telephone about the lawsuit. After Kubinski did not return a waiver of service, the Secretary attempted personal service multiple times at several addresses. Those attempts were unsuccessful, including attempts at addresses that were vacant, did not appear to belong to Kubinski, or were rejected by residents or building personnel. The Secretary also stated that Kubinski provided an address as current, but process servers determined on multiple occasions that service could not be completed there.

Legal standard

Federal Rule of Civil Procedure 4 governs service of a summons and complaint. The court explained that California law permits several service methods and that California Code of Civil Procedure section 413.30 allows a court to direct another method when it is reasonably calculated to give the defendant actual notice. Due process requires a method reasonably calculated to inform interested parties about the lawsuit and give them an opportunity to respond.

Courts may permit service by email when the plaintiff has made reasonably diligent attempts to serve the defendants and email service is reasonably calculated to provide actual notice. The court also explained that an extension under Federal Rule of Civil Procedure 16 requires good cause, which primarily depends on the diligence of the party seeking the extension.

Court’s reasoning

The court found that the defendants had actual notice of the lawsuit. Kubinski and the Secretary’s counsel had exchanged emails about the pending lawsuit, Kubinski responded after receiving an email attaching the complaint and other documents, and the Secretary sent the summons to the same email address. The court also noted that the parties had exchanged approximately 30 emails at that address over the preceding year.

The court further found that the Secretary had shown reasonable diligence through repeated attempts to serve Kubinski at multiple addresses. It concluded that the failed attempts, together with the valid email address and Kubinski’s apparent efforts to avoid personal service, supported service by email. The same circumstances established good cause to extend the case-management-conference deadline.

Disposition

The court granted the Secretary’s request to deem Kubinski, Blackline Partners LLC, and the Blackline Partners LLC 401(k) Plan served by email at mrkubinski@hotmail.com. It also continued the case-management conference from January 5, 2023, to March 9, 2023, at 10:00 a.m. by Zoom video conference. The parties were directed to file a joint case-management statement by March 2, 2023.