United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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. (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.
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.
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.
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 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).
Service of Process is Sufficient
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
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
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).
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.
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.”
“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.
The Court Lacks Personal ...