Kindermann v. Merz North America, Inc. et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
IAN KINDERMANN, an Individual,
Plaintiff,
v.
MERZ NORTH AMERICA, INC., a
North Carolina Corporation; and
DOES 1 to 50,
Defendants.
Case No.: 3:25-cv-00016-CAB-SBC
ORDER ON DEFENDANT MERZ
NORTH AMERICA, INC.’S BRIEF
IN SUPPORT OF ITS REQUEST
FOR PERMISSION AUTHORIZING
ALTERNATIVE SERVICE OF
DEPOSITION SUBPOENAS
I. INTRODUCTION
Defendant Merz North America, Inc., requests permission to serve by e-mail,
deposition subpoenas on two non-parties and former employees of Merz—Mikayla Harts
and Susan Grant. (Dkt. No. 38.) For the reasons stated below, the motion is GRANTED.
II. PROCEDURAL HISTORY
At the Initial Discovery Dispute Conference held on February 26, 2026, Defendant
requested the Court to serve deposition subpoenas on Mikayla Harts and Susant Grant by
e-mail. (Dkt. No. 37.) Thereafter on March 5, 2026, Defendant filed a brief in support of
its request to serve deposition subpoenas on Mikayla Harts and Susan Grant by e-mail.
(Dkt. No. 38.)
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III. FACTUAL BACKGROUND
For the reasons stated below, Defendant has been unable to effectuate personal
service on both Mikayla Harts and Susan Grant.
A. MIKAYLA HARTS
Mikayla Harts is a former employee of the Defendant. (Dkt. No. 38 at 2.) Both Ian
Kindermann, the Plaintiff, and Harts reported to Regional Director Jeniffer Bailly. (Id.)
Because Harts may be a key witness to Bailly’s alleged mistreatment of Plaintiff,
Defendant may face prejudice if unable to depose her. (Id. at 2-3.)
On February 9, 2026, Defendant properly noticed Plaintiff of its intent to depose
Mikayla Harts via Remote Technology on February 23, 2026. (Dkt. No. 38-1 at 5.) Process
servers have attempted service at Harts’ home three times on three different dates. (Id. at
10-12.) Additionally process servicers conducted surveillance of Harts’ home yet were
unsuccessful in locating her. (Id. at 13-14.) Harts’ occupation is in a field-based sales
position which does not consist of a physical location where she could be served at her
place of work. (Id. at 19.)
B. SUSAN GRANT
Susan Grant is also a former employee of the Defendant. (Dkt. No. 38 at 3-4.)
Because Grant may have accused Bailly of treating her poorly and creating a hostile work
environment, Defendant may face prejudice if unable to depose her. (Id.)
On February 16, 2026, Defendant properly noticed Plaintiff of its intent to subpoena
Grant for a deposition via Remote Technology on March 2, 2026. (Dkt. No. 38-1 at 22.)
That same day, Merz’s counsel contacted Grant’s former counsel, Michelle Matheson,
Esq., to ask if Matheson was authorized to accept service on Grant’s behalf (Id. at 18.) On
February 17, 2026, Matheson confirmed that she was authorized to accept service on
Grant’s behalf. (Id. at 18.) On February 18, 2026, Matheson informed Merz’s counsel that
Grant revoked the authority to accept service for her. (Id.)
Defendant’s attempts at personal service have been unsuccessful thus far. (Dkt. No.
38 at 4.) Two attempts at personal service by two separate process servers have failed.
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(Dkt. No. 38-1 at 28-32.) In total, five separate attempts, on three different days, have been
unsuccessful. (Id.) Like Harts, Grant works in field sales and does not have a physical work
location where she could be served. (Id. at 19.)
IV. LEGAL STANDARD
“Serving a subpoena requires delivering a copy to the named person.” Fed. R. Civ.
P. 45(b)(1). Rule 45 should “be construed, administered, and employed by the court and
the parties to secure the just, speedy, and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1. This standard is interpreted to require personal service of
non-parties. BBK Tobacco & Foods LLP v. Skunk Inc., 2020 WL 619675, at *1 (D. Ariz.
Feb. 10, 2020) (“Although personal service might, as a purely practical matter, have been
the only way to accomplish ‘delivery’ in an earlier era, modern technology can often
perform that task just as well in today’s day and age.”). Indeed, “a growing number of cases
have departed from the view that personal service is required and alternatively have found
service of a subpoena under Rule 45 proper absent personal service.” Arthur R. Miller, 9A
Fed. Prac. & Proc. Civ. § 2454 (3d ed. 2019). Alternative service includes e-mail or mail.
See, Toni Brattin & Co., Inc. v. Mosaic Int’l, LLC, 2015 WL 1844056, at *3 (N.D. Cal.
Apr. 9, 2015); Steve McCurry Studios, LLC v. Web2Web Mktg., Inc., 2014 WL 1877547,
at *2 (N.D. Cal. May 9, 2014).
V. DISCUSSION
The facts are in accordance with permitting alternative service by e-mail because (1)
Defendant has diligently attempted to, yet unsuccessfully, effect personal service on both
Harts and Grant; (2) Harts and Grant appear to be evading service; and (3) e-mail service
ensures timely, fair notice and an opportunity to object or file a motion to quash.
A. Alternative Service After Multiple Attempts and Failures
“[C]ourts are more inclined to grant such alternative service where the serving
party has provided sufficient evidence of its earlier diligence in attempting to effectuate
personal service.” Fujikura Ltd. v. Finisar Corp., 2015 WL 5782351, *5 (N.D. Cal.
2015); Youngevity Int’l Inc. v. Innov8tive Nutrition, Inc., 2025 WL 36169, at *1 (S.D.
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Cal. Jan. 6, 2025) (permitting alternative service after the plaintiff made a diligent
showing of its multiple attempts and failures to serve its subpoena).
Defendant has diligently attempted to serve both Harts and Grant but has been
unsuccessful. Defendant process servers have attempted to serve Harts at her home three
times on three different dates. (Dkt. No. 38-1 at 10-12.) Despite surveillance of Harts’
home for several days, process servers have been unable to effectuate personal service.
(Id. at 13-14.) Additionally, process servers have attempted five times on three different
dates to effectuate personal service on Grant—each to no avail. (Id. at 28-32.) Ms. Grant
at one point permitted her former counsel to accept service on her behalf; however, she
promptly revoked that authorization. (Id. at 18.) Given that both Harts and Grant appear
not to have a permanent work location, it is unclear if further attempts at personal service
will be fruitful. (Id. at 19.) Accordingly, alternative service is appropriate in part because
Defendant has diligently, but unsuccessfully, attempted personal service.
B. Purposeful Evasion of Service
The Federal Rules of Civil Procedure are not to be “construed as a shield for a
witness who is purposefully attempting to evade service.” Toni Brattin & Co., 2015 WL
1844056, at *3–4. In such situations, alternative service is appropriate when the non-party
recipient is elusive. Armed Forces Bank NA v. Dragoo, 2018 WL 8621583, at *2 (D. Ariz.
May 23, 2018).
Harts and Grant may be evading personal service. Harts is aware of Defendant’s
attempt to serve her with a subpoena. (Dkt. No. 38-1 at 17.) Despite Harts’ awareness and
surveillance of her home for several days by process servers, multiple attempts at service
have failed at varying times during the day and evening. (Id. at 10-14.) Grant likewise is
aware of Defendant’s attempt to serve her, at one point even authorizing her former counsel
to accept service on her behalf and then revoking authorization the next day. (Id. at 18.)
Defendant thereafter attempted service on five separate occasions over the course of three
days with no success. (Id. at 28-32.) Accordingly, alternative service is appropriate in part
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as to not allow the Federal Rules of Civil Procedure to be used as a shield for the potential
evasion of personal service.
C. Ensuring Timely, Fair Notice and an Opportunity to Object or File a
Motion to Quash
Courts increasingly permit alternative service so long as it is “reasonably calculated
to provide timely, fair notice and an opportunity to object or file a motion to quash.” In re
Delta Air Lines, Inc., 2023 WL 9018986, at *4 (C.D. Cal. Dec. 4, 2023) (citations omitted).
Alternative service by e-mail is an effective and efficient method of providing notice. BBK
Tobacco & Foods LLP, 2020 WL 619675, at *1.
Alternative service will adequately notice Harts and Grant of their depositions and
provide an opportunity to object. Defendant has confirmation of Harts’ current e-mail
address and Grant’s current e-mail address. (Dkt. No. 38 at 7-8.) Defendant intends to send
the Harts’ subpoena to her current e-mail address and Grant’s subpoena to her current e-
mail address as well as her counsel’s e-mail address. (Id.) Accordingly, alternative service
is appropriate in part to ensure both Harts and Grant receive fair notice and have an
opportunity to object or file a motion quash.
VI. CONCLUSION
Accordingly, after due consideration and for the reasons stated above, the Court
GRANTS Defendant’s Request for Permission Authorizing Alternative Service of
Deposition Subpoenas. The Court authorizes Defendant to utilize e-mail to serve
deposition subpoenas upon Harts and Grant.
IT IS SO ORDERED.
Dated: March 12, 2026
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