Millennium Franchise Group, LLC v. Bank of America, N.A.
- Charles Breyer
- 3:21-cv-08684
- U.S. District Court · Northern District of California
- 4
In Millennium Franchise Group v. Aric K. Perminter, Judge Breyer denied publication service because Millennium had not made enough efforts to locate and serve Aric D.
Millennium Franchise Group, LLC must make further efforts to serve Aric D. Perminter before seeking permission to use service by publication again; the order does not decide the underlying embezzlement claims.
What happened
Millennium Franchise Group sued Aric K. Perminter, Aric D. Perminter, and Lynx Technologies Partners over alleged embezzlement and related claims. Millennium had served Aric K. and Lynx but had not served Aric D.
Millennium asked to serve Aric D. by publishing notice. It described unsuccessful service attempts at Lynx’s business address and a Pittsburgh address, along with searches of public records and the internet.
The court denied the motion without prejudice, meaning Millennium could file another motion after making further efforts. Judge Breyer ruled that Millennium had not exhausted reasonable ways to locate Aric D., such as contacting relatives, checking directories, or mailing the summons to the Pittsburgh address.
The detailed version
- Millennium Franchise Group, LLC v. Bank of America, N.A. · No. 3:21-cv-08684
- Charles Breyer
- Feb. 28, 2023
Background
Millennium Franchise Group, LLC sued Aric K. Perminter, Aric D. Perminter, and Lynx Technologies Partners based on alleged embezzlement. Millennium asserted claims including concealment, conversion, breach of contract, unjust enrichment, breach of fiduciary duty, constructive fraud, and negligence. Millennium alleged that Aric D. and Aric K. stole $87,657.65 while Millennium was doing business with Lynx.
Millennium served Aric K. and Lynx but was unable to serve Aric D. Process servers made two unsuccessful attempts at Lynx’s business address and another unsuccessful attempt at a Pittsburgh address where management said Aric D. was a former tenant. Millennium’s counsel also stated that searches of Westlaw public records and Google did not produce another address.
Legal standard
Under Federal Rule of Civil Procedure 4(e)(1), service may follow the law of the state where the federal court is located or where service is made. California law permits service by publication when the defendant cannot be served through another permitted method with reasonable diligence and a cause of action exists against the defendant or the defendant is a necessary or proper party.
The court explained that reasonable diligence requires the steps that a reasonable person who truly wanted to provide notice would take under the circumstances. Because publication rarely provides actual notice, it is permitted only as a last resort. The court cited possible investigative steps including contacting relatives and searching city and telephone directories and voter registries.
Court’s reasoning and ruling
The court found that Millennium had stated a cause of action against Aric D., but had not shown that publication was the last available method of service. Although Millennium had attempted personal service more than once and conducted an internet search, it had not pursued other possible avenues. The court also noted that mailing the summons to the Pittsburgh address might have resulted in forwarding to Aric D.’s current address or provided a forwarding address.
The court therefore denied Millennium’s motion for service by publication. The denial was without prejudice to a future motion, provided that Millennium made further efforts to serve Aric D. The court resolved the motion without oral argument.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.