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Washington County Family Entertainment, LLC v. RNN Entertainment Inc.

United States District Court, W.D. Pennsylvania

January 4, 2018

WASHINGTON COUNTY FAMILY ENTERTAINMENT, LLC, Plaintiff,
v.
RNN ENTERTAINMENT INC., et al. Defendants.

          MEMORANDUM OPINION AND ORDER

          Cynthia Reed Eddy, United States Magistrate Judge.

         I. INTRODUCTION

         Presently pending before the court is a Motion for Alternative Service on Defendant Oluremi Daramola (ECF No. 65) filed by Plaintiff Washington County Family Entertainment, LLC (“Plaintiff” or “WCFE”). For the reasons set forth, the court will grant the motion.

         II. FACTUAL BACKGROUND

         In it motion Plaintiff WCFE avers that its efforts to serve named Defendant Daramola by the standard methods of service authorized by Rule 4 of the Federal Rules of Civil Procedure have failed because Daramola is “intentionally avoiding service of process.” Daramola is the sole and managing member of defendant RTD Group LLC (“RTD”). The Summons was reissued on November 13, 2017 (ECF No. 50). According to Plaintiff, a private process server and investigator has attempted four times, on different dates and at different times, to serve the Summons and Amended Complaint upon Daramola at his listed residential address (without success), telephone calls to known legal counsel for RTD and Daramola have been unanswered and not responded to, and the private process server and investigator made four separate attempts to serve Daramola at another residential address (without success), again at various times and on various dates. Furthermore Plaintiff's counsel sent a two emails to known legal counsel for RTD and Daramola attaching the Summons and Amended Complaint; although delivered, the emails were not responded to. A copy of one email was subsequently sent to that same legal counsel via confirmed facsimile, but to date counsel has not communicated with Plaintiff's counsel. Moreover, the California Secretary of State lists “Legalzoom.com” as the registered agent for RTD, and is thus authorized to accept delivery of copies of service of process on behalf of RTD. RTD was successfully served on November 27, 2017 via Legal Zoom. Nevertheless, Daramola has not been served.

         WCFE proposes alternate means of service of process upon Daramola via three different methods, through: (a) an email with delivery receipt to thertdgroup@gmail.com; (b) United States certified mail and facsimile to Daramola's known counsel, Mr. Wander, Law Offices of Perry C. Wander, 454 Wilshire Boulevard, Penthouse, Beverly Hills, California 90212, Fax No. 310-274-9985; and (c) United States certified mail to RTD's registered agent, LegalZoom.

         III. DISCUSSION

         In federal court, a plaintiff may serve a defendant pursuant to the law of the state in which the district court sits, or in which service is to be effected. Fed.R.Civ.P. 4(e)(1); McFadden v. Weiss, No. 13-2914, 2014 WL 5880097, at *2 (E.D. Pa. Nov. 13, 2014); Calabro v. Leiner, 464 F.Supp.2d 470, 471 (E.D. Pa. 2006). Thus, Plaintiff can satisfy Rule 4(e)(1) by serving Defendant in a manner consistent with either Pennsylvania or California law.

         Under Pennsylvania law, a plaintiff may serve an individual defendant outside the Commonwealth.

(1) by personal service, as provided in Pennsylvania Rule 402(a);
(2) by mail, as provided in Pennsylvania Rule 403; and
(3) as permitted by the law of the jurisdiction in which service is to be made.[1]

See PA. R. Civ. P. 404(1)-(3).

         If, however, “service cannot be made” outside the Commonwealth pursuant to the methods set forth in Pennsylvania Rule 404(1)-(3), the plaintiff “may move the court for a special order directing the method of service.” See PA. R. Civ. P. 430(a) (emphasis added); Calabro, 464 F.Supp.2d at 472 (“Alternative service is only appropriate when service ‘cannot be made' under the applicable [Pennsylvania Rule].”). Such a motion for alternative service “shall be accompanied by an affidavit stating the nature and extent of the investigation ...


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