United States District Court, D. Colorado
ORDER PERMITTING SERVICE OF PROCESS ON DEFENDANT
PLATINUM SATELLITE, INC. BY DELIVERY TO THE CALIFORNIA
SECRETARY OF STATE
Y. Wang United States Magistrate Judge
Judge Nina Y. Wang This matter comes before the court on
Plaintiff DISH Network L.L.C.'s (“Plaintiff”
or “DISH”) Motion for Order Permitting Service Of
Process On Defendant Platinum Satellite, Inc. By Delivery to
the California Secretary of State (the “Motion”),
filed February 15, 2018. [#14]. The undersigned considers the
Motion pursuant to 28 U.S.C. § 636(b), the Order
Referring Case dated February 5, 2018 [#10], and the
memorandum dated February 20, 2018 [#15]. For the reasons
stated herein, the Motion is GRANTED.
Colorado limited liability company, initiated this action by
filing its Application to Confirm Arbitration Award on
January 6, 2018. [#1]. According to DISH, Defendant Platinum
Satellite, Inc. (“Defendant” or “Platinum
Satellite”) entered into a Retailer Agreement with DISH
“to become authorized on a non-exclusive basis, to
market, promote, and solicit orders” for DISH's
television programming and satellite equipment. [Id.
at ¶ 7]. DISH continues that it ultimately initiated
arbitration proceedings against Defendant for its numerous
violations of the Retailer Agreement, namely a garnishment of
“no less than $156, 778.50 from DISH” that
Defendant was not entitled to. [Id. at ¶ 9].
About December 22, 2016, the Arbitrator entered an Order in
favor of DISH and against Platinum Satellite, an Order
Plaintiff now seeks to confirm in this court. [Id.
at ¶ 11].
undersigned originally set a Status Conference in this matter
for February 14, 2018, which was later reset to March 14,
2018, following DISH's representation to the court that
its efforts to serve process upon Defendant had been
unsuccessful. See [#11; #13]. DISH continued to have
difficulty effectuating service on Defendant, and filed the
instant Motion on February 15, 2018. [#14]. DISH requests an
Order from this court permitting it to serve process on
Platinum Satellite by delivering a copy of the Summons and
Application to Confirmation Arbitration Award and supporting
exhibits on the California Secretary of State pursuant to
section 1702 of the California Corporation Code.
4(h)(1)(A) of the Federal Rules of Civil Procedure allows
service of process on corporations in ways permitted under
Rule 4(e), including such methods approved by state law
“where the district court is located or where service
is made[.]” Fed R. Civ. P. 4(e)(1), (h)(1)(A). Relevant
here, the California Rules of Civil Procedure “allow
for five basic methods of service.” Gambord v.
Westside Gas, Inc., No. 17-CV-00262-BLF, 2017 WL
2774408, at *2 (N.D. Cal. June 26, 2017) (citing Cal. Civ.
Proc. Code §§ 415.10-415.50). Further, California
law provides that service may be made on a corporation by
hand-delivering process on the California Secretary of State
pursuant to a court order. Id.
Corporation Code section 1702(a) provides:
If an agent for the purpose of service of process has
resigned and has not been replaced or if the agent designated
cannot with reasonable diligence be found at the address
designated for personally delivering the process, or if no
agent has been designated, and it is shown by affidavit to
the satisfaction of the court that process against a domestic
corporation cannot be served with reasonable diligence upon
the designated agent by hand in the manner provided in
Section 415.10, subdivision (a) of Section 415.20 or
subdivision (a) of Section 415.30 of the Code of Civil
Procedure or upon the corporation in the manner provided in
subdivision (a), (b) or (c) of Section 416.10 or subdivision
(a) of Section 416.20 of the Code of Civil Procedure, the
court may make an order that the service be made upon the
corporation by delivering by hand to the Secretary of State,
or to any person employed in the Secretary of State's
office in the capacity of assistant or deputy, one copy of
the process for each defendant to be served, together with a
copy of the order authorizing such service. Service in this
manner is deemed complete on the 10th day after delivery of
the process to the Secretary of State.
Cal. Corp. Code § 1702(a). “California
Corporations Code § 1702(a) requires an affidavit
stating that the corporation cannot be served with reasonable
diligence.” Pac. Bell Tel. Co. v. 88
Connection Corp., No. 15-CV-04554-LB, 2016 WL
946132, at *3 (N.D. Cal. Mar. 14, 2016). Service is deemed
completed on the 10th day after delivery of process to
California Secretary of State. Cal. Corp. Code §
asserts that Platinum Satellite is a California corporation
with its principal place of business in Alhambra, California.
[#1 at ¶ 2]. DISH further asserts that Platinum
Satellite is a registered California corporation, that its
status is “FTB Suspended”,  and that its
registered agent for service of process is Juan Partida
located at 4012 Rowland Avenue, El Monte, California 91731.
[#14 at 3-4; #14-1].
January 8, 2018, the Clerk of the Court issued a Summons in
this action. See [#4]. DISH avers that not soon
after it mailed the Summons, Application to Confirm
Arbitration Award, supporting exhibits, declarations, and
instructions from the court to the Los Angeles County
Sheriff's Department to effectuate service on Mr.
Partida. [#14 at 1-2]. Pursuant to the “Affidavit of
Service” prepared by Deputy Richard S. Reinaga-an
authorized agent of the Los Angeles County Sheriff's
Department-service of process could not be effected on
Platinum Satellite or its registered agent Mr. Partida.
See [#14 at 2; #14-2]. The Affidavit of Service
indicates that Deputy Reinaga attempted to serve Defendant or
Mr. Partida twice at 4012 Rowland Avenue, El Monte,
California 91731, and three (3) times at an alternative
address 1903 W.Valley Blvd., Alhambra, California 91803.
See [#14-2]. All five (5) attempts were
unsuccessful. [Id.]. Plaintiff asserts that further
attempts to locate a valid address to effect service of
process have been unavailing. [#14 at 4].
on the foregoing, this court concludes that Platinum
Satellite cannot be served process with reasonable diligence
as required under California Corporation Code section
1702(a). Thus, DISH is permitted to serve Platinum Satellite
by hand-delivering the Summons, Application to Confirm
Arbitration Award and supporting documents, and a copy of
this Order to the California Secretary of State. ...