Opinion
Cause No. IP-01-0585-C-B/S
March 20, 2002
E N T R Y
In a January 16, 2002 Entry and Order, this Court ordered plaintiff to submit a detailed affidavit from its process server describing her alleged service of process on defendant. Plaintiff has complied with the Court's order and defendant has filed a reply brief. An examination of the parties' affidavits and arguments leads us to conclude that plaintiff has failed to effect sufficient service of process. Therefore, we must dismiss this cause for lack of personal jurisdiction over the defendant
Background
On April 29, 2001, plaintiff Vance Products Inc., d/b/a Cook Urological Inc. (Cook), filed the above-captioned cause against defendant Oasis Medical, Inc. (Oasis) lodging both federal and state trademark infringement claims and federal and state unfair competition claims. In its complaint, Cook also seeks a declaratory judgment that no likelihood of confusion exists between the products it markets under the mark "OASIS" and the products Oasis markets under the same mark.
On July 2, 2001, Cook filed with the Court a return of service wherein a process server declared that on June 19, 2001 she served the summons and complaint on Norman Delgado (Delgado), defendant's agent for service of process.
On June 6, 2001, Oasis filed a complaint against Cook in the United States District Court for the Central District of California, Western Division; the complaint included claims of federal and state trademark infringement and claims of federal and state unfair competition. On August 14, 2001, the District Court for the Central District of California determined that, in accordance with the first-to-file rule, Cook's request to transfer Oasis' case to the District Court for the Southern District of Indiana, Indianapolis Division, should be granted. Consequently, both Oasis' action, now Cause Number IP-01-1213-C-B/S, and Cook's action, Cause Number IP-01-0585-C-B/S, are presently in this Court.
On July 30, 2001, Oasis sought dismissal of the instant case under Federal Rule of Civil Procedure 12(b)(5); its request was based on, inter alia, defective service of process. On August 9, 2001, Cook moved for expedited discovery on the issues Oasis raised in its dismissal motion. The next day, Cook sought an extension of time to file its response brief until fifteen days after the Court ruled on its motion for expedited discovery. In a January 16, 2002 Entry and Order, we focused on Oasis' and Cook's motions to the extent they targeted defective service. We ordered Cook "to submit, at a minimum, a detailed affidavit from its process server describing her alleged June 19, 2001 service on Delgado." Entry and Order 6. In the event Cook submitted such an affidavit, Oasis was extended time to reply. Presently before the Court are the parties submissions in response to the Court's January 16, 2002 Entry and Order. We turn now to a discussion of those submissions.
Oasis' motion to dismiss was based not only on defective service but also on lack of personal jurisdiction and improper venue. Oasis alternatively sought transfer of venue.
Discussion
When a defendant challenges the sufficiency of service of process, the plaintiff bears the burden of making a prima facie showing that service properly was effected and that personal jurisdiction exists. Okocha v. G.O. Parking, Inc., 1997 WL 281296, *2 (N.D.Ill. May 20, 1997) (citing Trotter v. Oppenheimer Co., Inc., 1997 WL 102531, *2 (N.D.Ill. March 4, 1997)). The court may receive affidavits introduced by the parties when considering a Rule 12(b)(5) motion. Id. at *2; Torrespico v. Columbia College, 1998 WL 703450, *2 n. 3 (N.D.Ill. Sept. 30, 1998).
In the present case, Cook contends that it has complied with Federal Rule of Civil Procedure 4(h)(1) and (e)(1) in effecting service. Rule 4(h)(1) provides that service upon a domestic corporation shall be effected
in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agency authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant. . . .
Id. Rule 4(e)(1) stipulates that service upon an individual may be effected
pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State. . . .
Id.
To demonstrate adequate service on Oasis, Cook submits the affidavit of its process server, Florence Burks-Young (Burks-Young). In that affidavit, Burks-Young avers that on June 19, 2001 she decided to attempt service of process on Oasis. Burks-Young Aff. ¶ 5. Burks-Young stopped by Oasis without knowing whether Deladgo was in his office. Id. In accordance with an attorney's instructions, Burks-Young testifies, she entered Oasis through the door numbered 514. Burks-Young states that she asked a receptionist if she could speak with Delgado. Id. ¶ 7. According to Burks-Young, the receptionist told her that Delgado was in and that she would ask Delgado to come to the reception area. Id. Burks-Young avers that shortly thereafter "a gentleman appeared to meet me." Id. She told the gentleman that she was at Oasis to serve a summons and complaint upon him. Id. Burks-Young reports that the man informed her that she had the wrong person and that he would not accept the documents. Id. ¶ 8. At that point, Burks-Young avers that she told the man that service had been effected whether or not he physically accepted the documents. Id. She states that she left the summons and complaint with the receptionist and told the receptionist to forward the documents to Delgado. Id.
In reply, Oasis submits several affidavits that, when considered together, reveal that it was not Delgado whom Burks-Young served. Bill Hagel (Hagel) and Jim Poole (Poole), Oasis engineering consultants, and Dan Chadwick (Chadwick) and Yvonne Kromer (Kromer), Oasis materials department employees, have testified that they were working at Oasis on June 19, 2001 when Burks-Young alleges she effected service on Delgado. Hagel, Poole, Chadwick and Kromer Affs. ¶ 2.
Significantly, the four employees are stationed near the 514 entrance into Oasis — Hagel is positioned 10-12 feet from that door; Chadwick's work station is within 10 feet of it; Poole is within 23 feet; and Kromer is within 18 feet. Id. All four employees aver that no process server entered the premises through 514 on June 19, 2001. Id. ¶ 4. The employees also aver that two work desks are situated behind the 514 door and that the 514 entry has no reception area. Id.
Hagel, Chadwick, Poole and Kromer further state that the only area that possibly could be described as a reception area is reached when entering Oasis through the door marked with the 512 address. Hagel, Chadwick, Poole and Kromer Affs. ¶ 4. Delgado's administrative assistant, Donna Ryskey (Ryskey), is situated behind the door at 512. Id. ¶ 2. In Ryskey's affidavit, she avers that she was at work on June 19, 2001, and that no one attempting to serve Delgado approached her on that date. Id. ¶¶ 3-5. She testifies that, contrary to Burks-Young's averments, no process server handed papers to her and/or told her to forward them to Delgado. Id. ¶ 5. Ryskey did not observe or hear anyone tell Delgado he had been served. Id.
In reply to Burks-Young's affidavit, Delgado avers he is not the man with whom Burks-Young spoke on June 19, 2001. Delgado Supp'l Aff. ¶ 7. He states that neither in June 2001 nor at any other time has he told a process server that "you have the wrong guy" or that "I am not going to take those documents from you." Id. Delgado further testifies that
[b]eing face-to-face with a process server, or being handed lawsuit papers, are what I consider to be events which are intrusive enough that I would clearly remember them if they had occurred. If such an encounter occurred between Ms. Burks-Young and a male at Oasis Medical, Inc. in June of 2001, the male was not me [sic].
Id.
Following an examination of the many affidavits, we find that Cook has failed to make a prima facie showing that it served Delgado in person. At most, the evidence demonstrates that Burks-Young served some unknown man at Oasis. Certainly, that man was not Delgado. Even Burks-Young states that the gentleman on whom she attempted to effect service denied that he was Delgado. While it may be true, as Burks-Young states, that not infrequently individuals deny who they are when process is being served, there is nothing in the record to suggest that it was Delgado with whom Burks-Young spoke on June 19, 2001. Indeed, the record casts grave doubt even on Burks-Young's statement that she was at Oasis on June 19, 2001.
Cook launches an alternate argument. Federal Rule of Civil Procedure 4(h)(1), the rule for service on corporations, sanctions service if it is effected pursuant to Rule 4(e)(1), which permits service "pursuant to the law of the state in which . . . service is effected." Id. According to Cook, Burks-Young accomplished substituted service under California Civil Procedure Code § 415.20, which provides as follows: (a) In lieu of personal delivery of a copy of the summons and of the complaint to the person to be served . . ., a summons may be served by leaving a copy of the summons and of the complaint during usual office hours in his or her office with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing. Cal. Civ. Proc. Code § 415.20.
Contrary to Cook's contentions, the Court is persuaded that Burks-Young's alleged substituted service did not comply with California law. According to California law, substituted service requires the server to deliver the papers to a "person who is apparently in charge of such office." Cal. Civ. Proc. § 415.20 and Judicial Council Comments thereto. A list of the individuals who fit this description is found at California Civil Procedure Code § 416.10, and that list designates the following persons: the person designated as agent for service of process; the president or other head of the corporation; a vice president, secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the corporation to receive service of process. Cal. Civ. Pro. Code § 416.10(a), (b). Moreover, the comments indicate that "[t]he process server must set forth in his affidavit of service facts showing that these requirements were complied with." Judicial Council Comments to Cal. Civ. Pro. Code § 415.20.
Neither Burks-Young's affidavit of service nor her more recent affidavit demonstrate compliance with these two requisites. Burks-Young's more recent affidavit reveals that she does not know to whom she handed the process papers. She states that she spoke with a "gentleman" and ultimately handed the papers to a "receptionist." But affidavits submitted by Oasis make it clear that she did not speak with Delgado, that Oasis has no receptionist, and that Burks-Young did not hand the papers to Delgado's assistant. In her affidavit, Burks-Young describes neither the gentleman nor the receptionist.
Second, Burks-Young's affidavit of service signed June 22, 2001 does not suggest that she effected substituted service. Therein, Burks-Young reports that she personally served Delgado. She does not mention a receptionist or the involvement of any third person. Consequently, Burks-Young's affidavit of service is insufficient to satisfy California's requirement that substituted service be described in the affidavit of service.
Lastly, Burks-Young's sole attempt to serve Delgado is insufficient for the application of substituted service. California cases demonstrate that before a server resorts to substituted service, (s)he first must exercise reasonable diligence to effectuate personal service. "'Ordinarily, . . . two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.'" Bein v. Brechtel-Jochim Group, Inc., 6 Cal.App.4th 1387, 1391-92 (Cal.Ct.App. 1992) (quoting Espindola v. Nunez, 199 Cal.App.3d 1389, 1392 (Cal.Ct.App. 1988)). Burks-Young's affidavits do not suggest that she had made reasonably diligent but futile efforts to serve Delgado. See Burchett v. City of Newport Beach, 33 Cal.App.4th 1472, 1477 (Cal.Ct.App. 1995) (finding trial court properly quashed service and stating that "[r]ather than finding any reasonable diligence in the pursuit of personal service on these defendants, we find no evidence of any diligence whatsoever."). Rather, they indicate that Burks-Young actually believed she had served Delgado despite the gentleman's protestations to the contrary. Oasis' affidavits establish that Burks-Young's belief was wrong, but Burks-Young's incorrect assumption is not a solid foundation for Cook's eleventh hour argument of substituted service.
For these reasons, we find that Cook did not effect personal service on Oasis. Consequently, we lack personal jurisdiction over Oasis, and we grant Oasis' Rule 12(b)(5) motion to dismiss this action.
Such decision renders consideration of other pending motions unnecessary. We note, however, that the United States District Court for the Central District of California, Western Division transferred related Cause Number IP-01-1213-C-B/S to this Court under the first-to-file rule. Because we have determined that the above-captioned case is no longer viable, we would entertain a motion to transfer Cause Number IP-01-1213-C-B/S back to California.