United States District Court, N.D. Georgia, Atlanta Division
For Global Impex, Inc., Plaintiff: Eric J. Nathan, Philip H. Weener, LEAD ATTORNEYS, Zain Kapadia, Weener & Nathan LLP, Atlanta, GA USA.
Timothy C. Batten, Sr., United States District Judge.
Before the Court is Plaintiff Global Impex, Inc.'s motion to allow service of process by email and a request for fees associated with the motion .
Plaintiff filed its complaint on August 21, 2014 and attempted on multiple occasions thereafter to effect service of process. On August 21, Plaintiff's counsel sent a copy of the complaint and a request for waiver of service of summons to Defendant's registered address via certified mail. Delivery of the package to the U.S. Postal Service in Alamo, California was confirmed, and Defendant was notified that the package was available for pick-up at any time. Defendant failed to ever retrieve the package. Plaintiff then retained the services of a private process server, who attempted to serve Defendant at the same registered address on multiple occasions. Each of these attempts was unsuccessful.
Since this dispute arose in July 2014, Joseph Scherman, Defendant's principal representative, has engaged in continuous communications with Plaintiff regarding its demands for payment and its intention to file a lawsuit against his company. Scherman has exchanged multiple emails with Plaintiff's counsel, has made promises of prompt payment and his desire for an out-of-court settlement of the payment dispute, and he has acknowledged the existence of the present action. Plaintiff's private process server also spoke with Scherman's minor son and left multiple messages over the course of three months at Scherman's registered address, none of which resulted in any response.
It is clear that Defendant, through its representative Scherman, has knowledge of the dispute between the parties, is aware of the current lawsuit, and has continued to act in bad faith in failing to accept service of process. For these reasons, Plaintiff seeks the Court's permission to allow service of the complaint via email.
Under Rule 4(e)(1) of the Federal Rules of Civil Procedure, service may be effected by any means permitted by the law of the state in which the case is pending, or of the state where service is to be made. To comply with due process, the service of notice must be " reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Defendant is a California limited liability company and is therefore subject to service of process by any means authorized by the California Code of Civil Procedure. Section 415.50 of the California Code authorizes substituted service in certain circumstances.
(a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that . . .:
(1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.
Cal. Civ. P. Code § 415.50(a)(1). And while the California Code does not explicitly authorize service by email, it does liberally allow for alternative means of service:
Where no provision is made in this chapter or other law for the service of summons, the court in which the action is pending may direct that summons be served in a manner which is reasonably calculated to give actual notice to the party to be served ...