cong wang v kandi technologies service order

8/7/2019 Cong Wang v Kandi Technologies Service Order

1/3

Page 1 of 3 Initials of Deputy Clerk sr

UNITED STATES DISTRICT COURT PRIORITY SENDCENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES -- GENERAL

Case No. CV 09-7145-JFW (JEMx) Date: November 25, 2009

Title: Cong Wang, et al. -v-Zhejiang Kandi Vehicles Co., LTD, et al.

PRESENT:HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE

Shannon ReillyCourtroom Deputy

None PresentCourt Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:None

ATTORNEYS PRESENT FOR DEFENDANTS:None

PROCEEDINGS (IN CHAMBERS): ORDER GRANTING IN PART AND DENYING IN PARTDEFENDANTS MOTION FOR AN ORDER QUASHINGSERVICE OF PROCESS [filed 10/26/09; Docket No. 13]

On October 26, 2009, Defendants Zheijiang Kandi Vehicle Co., Ltd., a/k/a KandiTechnologies Corp.; Kandi Technologies Corp., f/k/a Stone Mountain Resources, Inc.;ZheijiangYong Kang Top Import and Export Co., Ltd., a/k/a Dingji; Zhehjiang Medgeli Electronic Co., Ltd.;Xiao Ming Hu; and Wang Yuan Hu (collectively, Defendants) filed a Motion for an Order

Quashing Service of Process (Motion). On November 16, 2009, Plaintiffs Cong Wang andSeaseng, Inc., a/k/a KMD Powersports (collectively, Plaintiffs) filed their Opposition. OnNovember 23, 2009, Defendants filed a Reply. Pursuant to Rule 78 of the Federal Rules of CivilProcedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision withoutoral argument. The hearing calendared for November 30, 2009, is hereby vacated and the mattertaken off calendar. After considering the moving, opposing, and reply papers and the argumentstherein, the Court rules as follows:

I. Procedural and Factual Background

On October 1, 2009, Plaintiffs filed this action against Defendants, alleging a variety of

claims for relief, including RICO and Lanham Act claims. On October 5, 2009, Plaintiffs attemptedto serve the summons and Complaint on Defendants by having a messenger, John Salazar,personally deliver copies of the summons and Complaint to Cindy Zhang of Kandi USA, Inc., at10955 Arrow Route, Suite 101, Rancho Cucamonga, California 91730. At the time, Kandi USA,Inc., was not a party to this action, and was not an agent for service of process for any party to thisaction. Similarly, Zhang is not a party to this action, and is not an agent for service of process forany party to this action. Plaintiffs claim that this delivery of copies of the summons and Complaintto Zhang was followed by the mailing of a copy of the summons and Complaint to Xiao Ming Hu at

Case 2:09-cv-07145-JFW-JEM Document 20 Filed 11/25/09 Page 1 of 3 Page ID #:228


2/3

1 Because Plaintiffs appear to have now properly served Defendant Kandi TechnologiesCorp., f/k/a Stone Mountain Resources, Inc., Defendants Motion is DENIED as moot as to thisDefendant. If Defendant Kandi Technologies Corp., f/k/a Stone Mountain Resources, Inc., hasreason to believe that this subsequent attempt at service is insufficient, it may address thoseissues in a separate motion.

2 Plaintiffs allege in their Complaint and First Amended Complaint that Zheijiang KandiVehicle Co., Ltd., a/k/a Kandi Technologies Corp.; Zheijiang Yong Kang Top Import and ExportCo., Ltd., a/k/a Dingji; and Zhehjiang Medgeli Electronic Co., Ltd. are foreign corporations existingunder and by virtue of the laws of the Peoples Republic of China. See, e.g., Complaint, 13-15,and First Amended Complaint, 13-15. In addition, Plaintiffs allege that Defendant Xiao Ming Huis a Chinese citizen and resident. Complaint, 16, and First Amended Complaint, 16. Thereare no allegations in the Complaint or First Amended Complaint as to the citizenship or residencyof Defendant Wang Yuan Hu.


the offices located at 10955 Arrow Route, Suite 101, Rancho Cucamonga, California. Plaintiffsalso claim that another copy of the summons and Complaint was mailed to Wang Yuan Hu at thesame address. Defendants, however, state that no copies of the summons and Complaint wereever received by mail. Plaintiffs also claim that the personal delivery of the copies of the summonsand Complaint along with the subsequent alleged mailing of those copies constitutes proper

substitute service on Defendants.

On November 16, 2009, Plaintiffs filed a First Amended Complaint, which added KandiUSA, Inc., a California corporation, as a defendant in this action. On November 24, 2009, Plaintiffsfiled a Proof of Service of Summons, Complaint, Summons on First Amended Compliant, and FirstAmended Complaint as to Defendant Kandi Technologies Corp., f/k/a Stone Mountain Resources,Inc., a Delaware corporation, indicating service by certified mail on Corporate Services Company,the registered agent for service of process.1

III. Discussion

Federal Rule of Civil Procedure 12(b)(5) allows a defendant to file a motion to dismiss forinsufficiency of service of process. When service of process is challenged, the party on whosebehalf it is made must bear the burden of establishing its validity." Aetna Business Credit, Inc. v.Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir.1981) (citing Familia de Boomv. Arosa Mercantil, S. A., 629 F.2d 1134, 1139 (5th Cir.1980)).

In this case, Plaintiffs have failed to demonstrate that their attempted service complied withthe rules governing service of process.2 See, Fed. R. Civ. Proc. 4(e), (f), and (h); California Codeof Civil Procedure 415.20, 416.10, and 416.90. Plaintiffs attempted to serve Defendants bypersonally delivering copies of the summons and Complaint to the Rancho Cucamonga location ofKandi USA, Inc. at the time, a non-party to this action and not a registered agent for service of

process of any of Defendants and then subsequently mailing copies to that same address.However, Plaintiffs make no attempt in their Opposition to explain how this attempted servicecomplies with the rules governing service of process. For example, with respect to Zheijiang KandiVehicle Co., Ltd., a/k/a Kandi Technologies Corp.; Zheijiang Yong Kang Top Import and ExportCo., Ltd., a/k/a Dingji; and Zhehjiang Medgeli Electronic Co., Ltd., Plaintiffs argue that service was



3/3


proper because Zhang did not say that these corporations were companies that did not operateout of that location or anything else that implied that the location was an improper place to servethese companies. Opposition, 5:18-20. However, it is Plaintiffs burden, and not Zhangs, toserve Defendants at an appropriate location and otherwise comply with the rules governing serviceof process.

In addition, even assuming arguendothat Plaintiffs complied with the requirements forsubstitute service, Plaintiffs have failed to demonstrate that prior to resorting to substitute service,they exercised reasonable diligence in attempting to personally serve Defendant Xiao Ming Huand Defendant Wang Yuan Hu. See, California Code of Civil Procedure 415.20(b). "Ordinarily,... two or three attempts at personal service at a proper place should fully satisfy the requirement ofreasonable diligence and allow substituted service to be made." Bein v. Brechtel-Jochim Group,Inc., 6 Cal.App.4th 1387, 1391-1392 (1992) (citation omitted). However, Plaintiffs present noevidence of any effort, beyond Salazars visits to the Rancho Cucamonga location of Kandi USA,Inc. at the time, a non-party to this action and not a registered agent for service of process of anyof Defendants to locate or personally serve Defendant Xiao Ming Hu and Defendant Wang Yuan

Hu. In addition, while Salazar states in his declaration that he went to the Rancho Cucamongalocation of Kandi USA, Inc., and spoke to Zhang on four different occasions, Zhang states in herdeclaration that she spoke to Salazar only twice, and that the other two dates on which Salazarstates he spoke to her October 3 and 4, 2009 were a Saturday and Sunday, when the officewas closed and she was not present. Moreover, Salazar and Zhangs declarations differ wildly onwhat was discussed during these conversations. For example, Zhang states in contradiction toSalazars declaration that she never told Salazar that she was in charge or that she would orcould accept service on behalf of either Defendant Xiao Ming Hu or Defendant Wang Yuan Hu.

As a result, there is no credible evidence before the Court that Defendants were properlyserved.

III. Conclusion

For all the foregoing reasons, the Court GRANTS in part Plaintiffs Motion, and QUASHESthe service of process as to Defendants Zheijiang Kandi Vehicle Co., Ltd., a/k/a KandiTechnologies Corp.; Zheijiang Yong Kang Top Import and Export Co., Ltd., a/k/a Dingji; ZhehjiangMedgeli Electroni Co., Ltd.; Xiao Ming Hu; and Wang Yuan Hu . The Court DENIES as mootPlaintiffs Motion as to Defendant Kandi Technologies Corp., f/k/a Stone Mountain Resources, Inc.

IT IS SO ORDERED.


cong wang v kandi technologies service order

Documents