SUPERVALU Inc. v. Virgin Scent Inc.

Background

SUPERVALU Inc. and United Natural Foods, Inc. asked the court for an order allowing them to serve Virgin Scent Inc. doing business as artnaturals through the California Secretary of State. They also requested an additional 90 days to complete service and an award of fees and costs. Virgin Scent did not oppose the motion, and the court decided it on the written submissions without a hearing.

Service Attempts

Virgin Scent is an active California corporation. Its designated agent for service of process was Yaakov Nourollah, whose listed service address was the company’s Gardena, California address. The plaintiffs tried to serve Yaakov six times at that address. Each time, a security guard said authorized staff were not present and refused the process server access to the building.

The plaintiffs also found a Los Angeles home address for Yaakov and made daily attempts to serve him there between April 8 and April 14, 2022. They additionally attempted service on the company’s chief executive officer, Yosef Nourollah, and chief financial officer, Akiva Nourollah, at addresses found through public-record searches. Those attempts were unsuccessful. The plaintiffs also sent documents by mail to Yaakov, Yosef, and Akiva, but none returned the required acknowledgments. The plaintiffs contacted a lawyer representing Virgin Scent in another matter, but that lawyer said he was not representing Virgin Scent in this case and had no other information to provide.

Alternative Service

Federal Rule of Civil Procedure 4 allows service on a corporation under the law of the state where the federal court is located or where service is made. Under California Corporations Code § 1702, a court may authorize hand delivery of process to the California Secretary of State when the corporation’s designated agent cannot be found with reasonable diligence and other specified service methods have failed.

The court found that the plaintiffs had made reasonable and diligent efforts to serve Yaakov, the company’s other officers, and the corporation. It also found that leaving the summons and complaint with the security guard was questionable because it was unclear whether he had authority to accept service. The court therefore concluded that the requirements for service through the California Secretary of State were met.

Service Deadline

Federal Rule of Civil Procedure 4(m) generally requires service within 90 days after filing the complaint. Because the plaintiffs had made varied and diligent efforts to serve Virgin Scent during that period, the court found good cause to extend the deadline. It granted the plaintiffs an additional 90 days from the date of the order to complete service.

Fees and Costs

The plaintiffs also requested fees and costs under Rule 4. The court denied that request. The record did not include the particular documents sent to Virgin Scent’s agent and officers, and the materials that were available did not show clearly that the plaintiffs had complied with Rule 4’s requirements for requesting a waiver of service, explaining the consequences of waiving or not waiving service, and allowing the required response time.

Order

The court struck the scheduled hearing. It granted in part and denied in part the plaintiffs’ motion. The plaintiffs were authorized to hand-deliver the summons, complaint, a copy of the order, and any other required documents and fee to the California Secretary of State. Service would be deemed complete on the tenth day after delivery to the Secretary of State, after which the Secretary of State would notify Virgin Scent. The plaintiffs also received an additional 90 days to complete service.