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Silver v. Hamrick & Evans, LLP

United States District Court, D. New Mexico

August 9, 2018

DAVID SILVER, Plaintiff,
HAMRICK & EVANS, LLP, Defendants.


         Plaintiff David Silver, proceeding pro se, filed suit against Defendant Hamrick & Evans for alleged legal malpractice arising out of an action filed on Plaintiff's behalf by Defendant in the Superior Court of California, County of Santa Clara. See Complaint (Doc. 1). On June 15, 2018, Defendant Hamrick & Evans, LLP filed a pre-answer motion to dismiss Plaintiff's complaint.[1] (Doc. 4). Defendant contends that Plaintiff's claims against it must be dismissed under Federal Rules of Civil Procedure 12(b)(5), for insufficient service of process, and 12(b)(2) for lack of personal jurisdiction, as well as for improper venue under 28 U.S.C. § 1406. Defendant alternatively requests that the Court transfer this case to the Central District of California under 28 U.S.C. §§ 1404 and 1406. This motion is fully briefed.[2]

         Plaintiff also filed two documents related to Defendant's Motion, one titled “Response to Defendant Hamrick & Evans, LLP's Objections to Affidavit of David Silver Filed in Support of Response to Motion to Dismiss” (Doc. 9), and another “Request for Judicial Notice Concerning Errors and Omissions in the June 14, 2018 Affidavit of A. Raymond Hamrick” (Doc. 11), both of which the Court construes as surreplies filed without leave of the Court. See D.N.M. LR-Civ 7.4(b). Finally, Plaintiff filed a motion to correct a statement in his Response (Doc. 12), which the Court will consider.

         The Court finds that, while service of process was sufficient, the Court lacks personal jurisdiction over Defendant and venue in the District of New Mexico is improper. Accordingly, Court will grant Defendant's Motion, and will order that the case be transferred to the U.S. District Court for the Central District of California.

         I. BACKGROUND[3]

         Plaintiff David Silver is a resident of New Mexico and the owner of several businesses that “provide leveraged buyout financing services and venture capital funding to clients” within New Mexico and nationally. (Doc. 1 at ¶ 1). Plaintiff hired Defendant, a California based law firm, to represent Plaintiff and Plaintiff's business in a case that was filed in the Superior Court of California, County of Santa Clara on September 15, 2014 against Tavant Technologies, which has its place of business in Santa Clara. (Id. at ¶¶ 2, 5). Plaintiff alleges that Defendant committed legal malpractice by failing to follow Plaintiff's written instructions directing Defendant to address certain matters with the California state court. (Doc. 1 at ¶ 4). These matters included: (1) Tavant's alleged violation of a Small Business Administration (SBA) rule prohibiting loans to foreign companies by Small Business Investment Companies (SBIC) (Doc. 1 at ¶¶ 9-11); (2) Tavant's alleged theft of Plaintiff's online baseball game “Latino Beisbol” (Doc. 1 at ¶¶ 16-17); and (3) Plaintiff's alleged violation of the H-1B visa program (Doc. 1 at ¶¶ 18-19). Plaintiff claims these omissions and Defendant's negligent representation resulted in a $350, 000[4] judgment against him and in favor of Tavant Technologies as well as other damages. (Doc. 1 at ¶¶ 12). On May 2, 2018, Plaintiff filed his Complaint asserting five causes of action against Defendant: Failure to Employ a Standard of Care (First Cause of Action); Failure to Follow Client's Instructions (Second Cause of Action); Inadequate Discovery of Facts (Third Cause of Action); Negligence (Fourth Cause of Action); and Punitive Damages (Fifth Cause of Action). (See generally Doc. 1). Plaintiff seeks damages totaling $7, 050, 0000. (Doc. 1 at ¶ 47).

         II. ANALYSIS

         A. Service of Process is Sufficient

         Defendant first argues that the Court should dismiss the claims against it for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). “Effectuation of service is a precondition to suit, ” Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998), and Rule 12(b)(5) authorizes dismissal of a lawsuit for insufficient service of process. Plaintiff bears the burden of establishing validity of service. See Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992). “In evaluating whether Plaintiff has met [his] burden, the Court may examine materials outside of the complaint including affidavits and other documentary evidence.” Warden v. DirecTV, LLC, 92 F.Supp. 1140, 1143 (D. N.M. 2015) (internal quotation marks and citation omitted).

         There is no express provision for service of process under the Federal Rules of Civil Procedure. However, Rule 4(m) sets forth a time limit for service, indicating that a defendant must be properly served within 90 days after the complaint was filed. Rule 4(e)(1) provides that service on a defendant in a judicial district of the United States can be achieved by following “state law for serving summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1). The same rule applies to serving a corporation, partnership, or other unincorporated association. See Fed. R. Civ. P. 4(h)(1). Accordingly, relevant here are methods for service of process authorized by New Mexico Rule of Civil Procedure 1-004 and California Code of Civil Procedure §§ 415.10, et seq. Plaintiff has demonstrated that Defendant was properly served in accordance California Code of Civil Procedure § 415.20.

         In California service can be accomplished by “personal delivery of a copy of the summons and of the complaint to the person to be served, ” Cal. Code Civ. Proc., § 415.10. However, substitute service can be made “if a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, ” by leaving a copy of the summons and complaint, during usual office hours at the usual place of business of the person to be served, with a person who is “apparently in charge thereof, ” followed by mailing a copy by first-class mail to that same location. See Cal. Code Civ. Proc., § 415.20. Two or three attempts at personal service at a proper place is considered “reasonable diligence” to allow for substitute service. See Bonita Packing Co. v. O'Sullivan, 165 F.R.D. 610, 615 (C.D. Cal. 1995).

         Defendant contends that, for two reasons, Plaintiff has failed to meet his burden of establishing valid service: (1) service of the summons and complaint was effected by Plaintiff, a party to the action, which is not allowed under any of the applicable laws; and (2) the summons and complaint were improperly delivered by mail and Federal Express. (See Doc. 4 at 2-4; Doc. 8 at 2). In his response, Plaintiff takes the position that mailing the complaint and summons to Defendant via United States Postal Service Express Mail, which he appears to have attempted twice, was valid service. (Doc. 7 at 1). These two attempts did not comply with applicable law regarding service of process and were otherwise unsuccessful.

         However, on July 19, 2018, still within the 90 day window, Plaintiff filed what is titled “Proof of Service of Complaint on Defendant Hamrick & Evans, LLP” (Doc. 10). Enclosed is an invoice from Countrywide Process, LLC, a registered California process server, an Affidavit of Service Summons & Complaint signed by Kimmberly Allen of Countrywide Process, LLC, and a Declaration of Reasonable Diligence which outlines the steps Ms. Allen took to serve process on Defendant. (Doc. 10 at 3-6). In the Declaration, Ms. Allen states that she attempted to personally serve Defendant at its place of business in Burbank, California on three separate dates, but the person authorized to accept service was not in. (Doc. 10 at 5). Ms. Allen writes that as a result, on Monday, July 16, 2018, she “Substituted Service on: Hamrick & Evans, LLP Business” by serving “Jane Doe Receptionist.” (Id.). Ms. Allen then provides a physical description of the individual served and states that this person is “a Person in charge at least 18 years of age apparently in charge of the office or usual place of business of the person served.” (Id.). Ms. Allen also mailed a copy of the documents by first-class, prepaid postage to Hamrick & Evans, LLP the following day. (See id.), Defendant did not file any additional response contesting Plaintiff's latest “Proof of Service.”

         The “third time's a charm, ” and the Court finds that this third attempt at service upon Defendant Hamrick & Evans was effective as substitute service under Cal. Code Civ. Proc. § 415.20. The process server properly noted her efforts to personally serve Defendant, and having made three attempts to leave the summons and complaint with the person authorized to accept service for Defendant, accomplished substituted service in the manner prescribed by California law. (Doc. 10 at 3-6). Since Defendant filed no response challenging Plaintiff's “Proof of Service” and did not request to file a response, the Court finds that service was properly effected.

         B. The Court Lacks Personal ...

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