United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
Quincy Bioscience is suing defendants Thach Le,
Pharmacentral, Vinnie's Valuables, and AMZ Health for
selling dietary supplements on Amazon.com under Quincy's
PREVAGEN trademark, in violation of both federal and state
law. Quincy has filed two related motions: (1) a motion for
leave to “allow alternative service of process, ”
Dkt. 18; and (2) a motion for an extension of time to serve
the complaint, Dkt. 21.
says that it has attempted personal service of each defendant
multiple times, but it has failed to accomplish service on
any of them. So it is seeking permission to serve defendants
in several alternative ways, including mail, publication,
email, and informally through someone it believes is Le's
lawyer. Because Quincy has not shown that it acted with
reasonable diligence, the court will deny its motion to be
excused from personally serving defendants. But the court
will grant Quincy's motion for a 45-day extension of time
to accomplish service.
Federal Rule of Civil Procedure 4(e)(1) and (h)(1)(A), the
plaintiff may accomplish service on an individual or business
entity by following the law of either the forum state or the
state where the party will be served. Quincy alleges that all
of the defendants are located in other states, but it does
not contend that any of those states' service
requirements are more permissive than Wisconsin's, so the
court will focus on Wisconsin law.
Wis.Stat. § 801.11, service is permitted in different
ways, depending on the circumstances. For individuals, the
plaintiff must first attempt personal service. Wis.Stat.
§ 801.11(1)(a). If the plaintiff cannot accomplish that
through reasonable diligence, it may leave a copy of the
summons with a family member or other adult “at the
defendant's usual place of abode.” Wis.Stat. §
801.11(1)(b). If the plaintiff cannot accomplish
that through reasonable diligence, it may serve the
defendant by publication and by mailing. Wis.Stat. §
801.11(1)(c). For corporations or limited liability
companies, the plaintiff must first attempt to personally
serve the defendant's “officer, director, or
managing agent” or leave the summons “with the
person who is apparently in charge of the office.”
Wis.Stat. § 801.11(5)(a). If the plaintiff cannot
accomplish that through reasonable diligence, the plaintiff
may perform service through mail and publication. Wis.Stat.
§ 801.11(5)(b). For partnerships, the plaintiff must
serve each partner in any manner permitted under the other
provisions in the statute. Wis.Stat. § 801.11(6).
case, Quincy says that it has acted with reasonable diligence
in trying to personally serve defendants, but it has been
unsuccessful, so it seeks permission to accomplish service
through mail and publication as well as through email and
informally through Le's lawyer. As to Le, Quincy says
that it has taken the following steps: hired a hired a
private investigator and searched “people
locator” databases to uncover Le's residential
addresses in Pennsylvania and Florida, Dkt. 18, ¶ 3;
attempted service (through a process server) at the
Pennsylvania address eight times between December 5, 2018,
and February 20, 2019, Dkt. 19-6, Dkt. 19-8, and Dkt. 19-11;
attempted service at the Florida address five times between
December 14 and December 17, 2018, Dkt. 19-7; and attempted
to serve Le at a court hearing in Davie, Florida, on February
12, 2019, but Le did not appear at the hearing, Dkt. 19-10.
courts have held that making repeated service attempts at a
defendant's known residences can qualify as
“reasonable diligence” under § 801.11.
E.g., O'Donnell v. Kaye, 2015 WI.App.
7, ¶ 6 n.3, 359 Wis.2d 511, 859 N.W.2d 441; Welty v.
Heggy, 124 Wis.2d 318, 325-26, 369 N.W.2d 763 (Ct. App.
1985). But that is not necessarily sufficient as a matter of
law. “The guiding principle in these cases is that,
when pursuing any leads or information reasonably calculated
to make personal service possible, the plaintiff must not
stop short of pursuing a viable lead.” Loppnow v.
Bielik, 2010 WI.App. 66, ¶ 15, 324 Wis.2d 803, 783
N.W.2d 450 (internal quotations omitted).
evidence submitted by Quincy shows that it has failed to
pursue at least one viable lead. Specifically, the process
server who attempted to serve Le at his February 12 court
hearing stated in an affidavit that he spoke to the judge who
presided over the hearing, who stated that “there will
be another hearing” and that “Mr. Tach Le will
have to show up” at that hearing. Dkt. 19-10, at 2.
Quincy does not allege that it attempted to follow up on that
lead and it does not explain why it failed to do so. If the
hearing at issue has not yet occurred, Quincy may still be
able to serve Le there. And if the hearing has already
occurred, Quincy will need to explain why it believes its
failure to follow up on the lead qualifies as reasonable
diligence. So the court will deny Quincy's motion to be
excused from personally serving Le, but will grant its
request for an extension of time to accomplish service. If
Quincy is unable to accomplish personal service after making
additional efforts, it may renew its motion.
efforts to serve the business entities were essentially the
same as its efforts to serve Le. This is because Quincy says
that Le's residences serve as the other defendants'
principal places of business. It cites several pieces of
evidence to support that belief. See Dkt. 19,
¶¶ 5-6. But even if Quincy's belief is correct,
and even if Quincy's efforts for serving Le had been
adequate, that would not show that Quincy exercised
reasonable diligence in serving the other defendants. Quincy
does not say what type of business entity the other
defendants are, presumably because it does not know. But if
the other defendants are corporations or limited liability
companies or partnerships, then they should have registered
agents to accept service. Quincy doesn't describe any
efforts it took to determine either the type of entity that
the defendants are or the identity of their registered
be that Quincy did not investigate this issue because it
believes that Pharmacentral, Vinnie's Valuables, and AMZ
Health are simply names under which Le does business. But if
that is true, then Quincy should not have sued those business
separately and they should be dismissed from the case.
See York Group, Inc. v. Wuxi Taihu Tractor Co.,
Ltd., 632 F.3d 399, 403-04 (7th Cir. 2011). Either way,
Quincy hasn't shown that it is entitled to serve these
entities by mail and publication.
court will deny Quincy's motion to excuse the requirement
to serve Pharmacentral, Vinnie's Valuables, and AMZ
Health personally but grant the motion to give Quincy more
time to accomplish service. Quincy must either attempt to
serve these defendants' registered agents, explain why it
cannot do so, or dismiss them from the case as nonlegal
final point. In its request to accomplish service by
publication, Quincy does not say where it wishes to
publish notice. It says only that it will comply with the
“appropriate procedural requirements under state law in
the newspapers of appropriate geographic circulation
scope.” Dkt. 18, at 5-6. If Quincy renews its motion,
it should provide a more specific proposal so that the court