James J. Rankl, Esq., Attorney for Defendants
ROBERT C. JONES, U.S. DISTRICT COURT JUDGE
I. Procedural History
On June 4, 2014, Defendants Victor Szanto and Evye Szanto ("Defendants") moved for dismissal of the second amended complaint pursuant to FRCP 12 upon the ground that Defendants were not personally served on April 11, 2014, as claimed by Plaintiff and therefore there was no personal jurisdiction. Defendants' motion was supported by their affidavits and other documents supporting their assertion that they were in New Delhi, India on April 11, 2014. In response Plaintiff offered the affidavits of personal service signed by Jared Phillips, a process server hired by Plaintiff and presented arguments that the affidavits and documents submitted by Defendants were false and/or forged. In light of the conflicting evidence the Court issued a Minute Order setting an evidentiary hearing on the question of whether Defendants were personally served on April 11, 2014, at the Starbucks coffee shop located at 4000 S. Lake Tahoe Blvd., South Lake Tahoe, California, and further ordered the appearance of the parties at the evidentiary hearing.
On July 21, 2014, the Court held a lengthy evidentiary hearing on the issue of whether Defendants were personally served on April 11, 2014. At the hearing Defendants testified that they were not personally served on April 11, 2014, and on that date they were in New Delhi, India. In support of their testimony Defendants produced their passports and visas indicating their arrival in India on April 11, 2014, and return to the Unites States on April 30, 2014. Defendants also produced copies of airline tickets, hotel invoices and other documents to prove their presence in India on April 11, 2014.
Plaintiff offered no evidence of service on April 11, 2014, other than the previously filed affidavits of service. More importantly Plaintiff failed to produce the process server to testify regarding the alleged service. At the conclusion of the evidentiary hearing the Court found by a preponderance of the evidence that Defendants were not personally served on April 11, 2014 and were in fact in India. Based upon the evidence presented the Court concluded that Plaintiff's process server was mistaken about who he served if in fact he served anyone. The Court further concluded that the record demonstrated that Plaintiff had years to serve Victor and Evye Szanto, but failed to do so. On July 30, 2014, the Court issued its Order which in relevant part granted Defendants' Motion to Dismiss and dismissed Defendants Victor and Evye Szanto as parties upon the ground that Plaintiff had failed to timely serve the Defendants.
On August 27, 2014, Plaintiff filed a Motion for Reconsideration (ECF No. 153) of the Court's Order Granting Defendants' Motion to Dismiss (ECF No. 137). In relevant part Plaintiff alleged that reconsideration was warranted because Plaintiff recently discovered that the subject service of Defendants did not occur on April 11 as previously alleged, but actually occurred on April 1. In support of the Motion for Reconsideration the process server attested that he actually served Defendants on April 1, 2014, but due to his sloppy handwriting in his original notes of service he mistakenly wrote April 11 on the affidavit of service instead of April 1. In the Motion for Reconsideration Plaintiff also argued that the Court's consideration of Defendants' passports was a substantial error or law, Plaintiff misunderstood the purpose of the evidentiary hearing, the Court misapplied FRCP 4(m) and that Defendants were personally served in court after the evidentiary hearing on July 17, 2014.
Defendants opposed Plaintiff's Motion for Reconsideration on several grounds. Most importantly Defendants submitted their affidavits and the affidavit of a third party who was traveling with them, attesting that they were not in South Lake Tahoe on April 1, 2014 as alleged by Plaintiff's process server but were actually 230 miles away in Red Bluff, California on that date.
For the reasons set forth in the Court's Order dated October 15, 2014 (ECF No. 162) the Court rejected Plaintiff's claims of judicial error and judicial bias raised in Plaintiff's Motion for Reconsideration. Additionally, the Court rejected Plaintiff's claims that he was "surprised" about the purpose of the July 21, 2014 evidentiary hearing.
In light of the information provided in the process server's affidavit, and the affidavits submitted by Defendants disputing the fact of service the Court decided to give Plaintiff one final chance to demonstrate that Defendants were timely served. Accordingly the Court issued an Order (ECF No. 162) setting the time and date for an evidentiary hearing on whether Defendants were personally served on April 1, 2014. In that Order the Court specifically ordered that the parties and Plaintiff's process server, Mr. Phillips, attend the hearing.
The evidentiary hearing on whether Defendants were personally served on April 1, 2014, was held on November 17, 2014. Due to other matters on the Court's docket, the hearing scheduled for 10:00 AM began at 10:51 AM. In attendance at the hearing were Plaintiff, Defendants Victor and Evye Szanto, and Defendant's counsel. Plaintiff advised the Court that his process server, Mr. Phillips, was en route but had not yet arrived. The Court recessed at 11:00 AM to allow Mr. Phillips additional time to appear. At 11:24 AM the Court reconvened and Plaintiff informed the Court that Mr. Phillips had still not arrived, Plaintiff did not know Mr. Phillip's location and that Plaintiff had not been successful in reaching Mr. Phillips by telephone.
Counsel for Defendants noted for the record that Defendants and witness Austin Bell were present and prepared to testify in accordance with the affidavits submitted in support of their motion, that Defendants were not personally served on April 1, 2014, on April 1, 2014 Defendants were in Red Bluff, California and Defendants were not present in South Lake Tahoe. Counsel also noted the presence of John Barlow, owner of the Tehama Auto Center, who was prepared to testify about the purchase of a ball and hitch by Victor Szanto on April 1, 2014, in Red Bluff, California.
Plaintiff has failed to produce Mr. Phillips on two separate occasions to testify regarding the alleged personal service on Defendants. In the first instance Plaintiffs claim of surprise that Mr. Phillilps' testimony was necessary is simply not credible. Plaintiff had full knowledge of Defendants' assertion that they were in India on April 11, 2014, and the exhibits produced by Defendants prior to the hearing supported their assertion. With respect to the second evidentiary hearing on November 17, 2014, the Court decided to eliminate the possibility of surprise, confusion and/or doubt by specifically ordering Plaintiff to produce Mr. Phillips at the hearing. Notwithstanding the Court's order, Plaintiff failed to produce Mr. Phillips at the evidentiary ...