1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 KIM MAN WAI, et al., Case No. 20-cv-06302-MMC

8 Plaintiffs, ORDER GRANTING DEFENDANT'S MOTION TO QUASH SERVICE OF 9 v. SUMMONS; SETTING DEADLINE TO SERVE ZHU; DENYING AS MOOT 10 YORK YUAN YUAN ZHU, DEFENDANT'S MOTION TO DISMISS; VACATING CASE MANAGEMENT 11 Defendant. CONFERENCE

12 13 Before the Court are two motions filed by defendant York Zhu ("Zhu"): (1) "Motion 14 to Quash Service of Summons," filed October 30, 2020; and (2) "Motion to Dismiss 15 Based on Forum Non Conveniens," also filed October 30, 2020. The motions have been 16 fully briefed. Having read and considered the papers filed in support of and in opposition 17 to the motions, the Court rules as follows.1 18 A. Motion to Quash Service of Summons 19 On September 4, 2020, plaintiffs Kam Man Wai, Mok Kan Ning, Young Wai Bon, 20 and Young Tze Kwan filed the instant complaint, asserting claims arising from their 21 investment in a company allegedly owned by Zhu. (See Compl. ¶¶ 1-2.) On September 22 17, 2020, a process servicer left the summons and complaint with Zhu's wife at a 23 residence in Palo Alto, California. (See Proof of Service, filed September 23, 2020.) 24 By the instant motion, Zhu argues the service attempt was insufficient under the 25 Federal Rules of Civil Procedure. In support thereof, Zhu offers evidence, undisputed by 26 plaintiffs, that he is a "resident of China" (see Zhu Decl. ¶ 2), that his "usual[ ] place of 27 1 abode" in is Nantong, China (see id. ¶ 3), that, although he owns the property in Palo Alto 2 where the process server left the summons and complaint with Zhu's wife, he has not 3 been to such location, or any other location in California, since June 2015 (see id. ¶¶ 4- 4 5), and that he has never given his wife "authority to accept any legal documents on [his] 5 behalf" (see id. ¶ 6). 6 Plaintiffs argue the manner of service was proper, on the asserted ground that the 7 property in Palo Alto is Zhu's "home address" and/or his "mailing address." (See Pls.' 8 Opp. at 2:19-24.) Specifically, plaintiffs rely on Rule 4(e), which provides that a 9 defendant may be served by "following state law for serving a summons . . . in the state 10 where the district court is located," see Fed. R. Civ. P. 4(e)(1), and, in turn, on § 415.20 11 of the California Code of Civil Procedure, which provides in relevant part:

12 If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, . . . a summons may be 13 served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual 14 mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household . . ., at least 18 15 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class 16 mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. 17 See

(b). 18 Plaintiffs, as noted, have failed to offer any evidence to dispute Zhu's showing that 19 he has not been to the Palo Alto property for over five years, thus foreclosing a finding 20 that the Palo Alto property is Zhu's "dwelling house" or his "usual place of abode." See 21

(b). Nor have plaintiffs offered or cited to any evidence to 22 support a finding that the Palo Alto property is Zhu's "usual mailing address." See id.2 23 Consequently, plaintiffs have failed to effectuate service under § 415.20(b). 24 Plaintiffs also argue that because Zhu "does not deny" he received the summons 25 26 2 Further, plaintiffs offer no evidence to show that, after the process servicer left 27 the summons and complaint with Zhu's wife at the Palo Alto property, plaintiffs mailed a 1 and complaint, he has "actual knowledge" of the lawsuit, and thus service should be 2 deemed sufficient. (See Pls.' Opp. at 3:2-3, 4:7, 11-12.) Plaintiffs cite no authority 3 holding deficient service of process is excused if the defendant has "actual knowledge" of 4 the lawsuit. Indeed, the Ninth Circuit has rejected such theory, holding that, in the 5 absence of "substantial compliance with Rule 4, "actual notice" of an action is insufficient. 6 See Jackson v. Hayakawa,

(9th Cir. 1982). Here, as discussed 7 above, plaintiffs did not comply at all, let alone substantially, with § 415.20(b). 8 Accordingly, the motion to quash service will be granted. 9 In his motion, Zhu asserts he can only be served pursuant to the procedures set 10 forth in the Hague Convention, and plaintiffs, in their opposition, appear to acknowledge 11 such procedure would be necessary if the Court were to find, as it has, their above- 12 discussed efforts were not sufficient. As the ninety-day deadline to serve a defendant 13 does not apply to "service in a foreign country," see Fed. R. Civ. P. 4(m), and as plaintiffs 14 assert it may take a significant period of time to serve Zhu through the Hague 15 Convention, the Court will set a deadline of November 30, 2021, for plaintiffs to file proof 16 of service upon Zhu. If plaintiffs have not, by said deadline, filed proof of service on Zhu 17 or filed a motion showing good cause exists for a further extension, the Court will dismiss 18 the above-titled action, without prejudice, for failure to serve. 19 B. Motion to Dismiss Based on Forum Non Conveniens 20 In light of the findings set forth above, Zhu's alternative motion to dismiss is hereby 21 DENIED as moot. 22 CONCLUSION 23 For the reasons stated above: 24 1. Zhu's motion to quash service of the summons and complaint is hereby 25 GRANTED, and plaintiffs are hereby DIRECTED to file, no later than November 30, 26 2021, proof of service on Zhu. 27 2. Zhu's motion to dismiss is hereby DENIED as moot. 1 February 12, 2021, is hereby VACATED, and will be reset in the event plaintiffs file proof 2 || of service of the summons and complaint on Zhu. 3 IT IS SO ORDERED. 4 5 || Dated: January 21, 2021 . INE M. CHESNEY 6 United States District Judge 7 8 9 10 11 12

13

16

17 18 19 20 21 22 23 24 25 26 27 28