The Board of Trustees v. Empire Engineering & Construction, Inc.

Background

The plaintiffs asked for permission to serve Empire Engineering & Construction, Inc. with the summons and complaint by publication. They also asked for a 60-day extension of the deadline to serve the defendant.

Court’s Analysis

Under California law, service by publication is permitted only when the defendant cannot be served by another method despite reasonable diligence and when a legal claim exists against the defendant, or the defendant is a necessary or proper party. Because publication may not provide actual notice, courts treat it as a last resort.

The court found that the plaintiffs’ papers did not show reasonable diligence or exhaustive efforts to locate and serve the defendant. The court also found that counsel’s declaration lacked independent evidence supporting the existence of a claim against the defendant. In addition, the plaintiffs did not identify the newspaper in which they wanted to publish the summons or explain why publication there would likely give the defendant actual notice.

Ruling

The court granted in part and denied in part the application. It denied the request to serve the defendant by publication without prejudice. The court extended the deadline to serve the defendant to March 7, 2024, and directed the plaintiffs to file a renewed motion or a status report by that date. Magistrate Judge Donna Ryu stated that any renewed request would need to address the identified deficiencies.