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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

THOMAS EUGENE MOORE,

Plaintiff,

v.

THE AMERICAN TOBACCO COMPANY,

INC.; PHILLIP MORRIS INCORPORATED; R.J.

REYNOLDS TOBACCO COMPANY; BROWN

& WILLIAMSON TOBACCO CORPORATION;

BRITISH AMERICAN TOBACCO CO., LTD;

LIGGET GROUP, INC.; LIGGET & MYERS,

INC.; THE COUNCIL FOR TOBACCO

RESEARCH-U.S.A., INC.; THE TOBACCO

INSTITUTE, INC.; LORILLARD TOBACCO

COMPANY; AND DOES 1 through 60,

inclusive, 

Defendants.

_______________________________________/

CIV. S-04-1895 MCE PAN (GGH) PS

ORDER and

FINDINGS AND RECOMMENDATIONS

This case was referred to the undersigned on May 24, 2006, for decision

pursuant to E.D. Cal. L.R. 72-302(c)(21). The court now issues this order and findings and

recommendations. 

Plaintiff filed this action on May 29, 2002, in Sacramento County Superior

Court, alleging state law claims for negligence, conspiracy and intentional tort based on

defendants’ allegedly deceptive advertising practices which plaintiff asserts caused him physical

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 Plaintiff seeks general damages in the amount of $1,835,000.00, lost earnings of 1

$927,100.00, and punitive damages of $2,000,000.00.

 Plaintiff is a resident of California; according to Brown & Williamson, all named 2

defendants are incorporated, and have their principal places of business, in states (or countries)

other than California.

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and psychological addiction to tobacco and related injuries. Plaintiff filed a first amended

complaint on July 3, 2002.

On August 6, 2004, plaintiff mailed a summons, first amended complaint and

two notices of acknowledgment of receipt to “Lane Limited, P.O. Box 1289, Tucker, GA 30085-

1289.” Lane Limited received the package August 1, 2004 and forwarded it that day to defendant

Brown & Williamson.

On September 10, 2004, Brown & Williamson removed plaintiff’s action to

this court. 28 U.S.C. § 1441 et seq.

Removal of a state court action to the federal district court is permitted for

“any civil action brought in a State court of which the district courts of the United States have

original jurisdiction.” 28 U.S.C. § 1441(a). Since plaintiff seeks damages in excess of $75,0001

and this action is between citizens of different states and a London corporation, removal of this

action is proper based on this court’s diversity jurisdiction. 28 U.S.C. §§ 1332(a)(3). Brown & 2

Williamson’s removal was timely because made within thirty days of receipt of plaintiff’s

attempted service. See 28 U.S.C.A. § 1446 (b) (“The notice of removal of a civil action or

proceeding shall be filed within thirty days after the receipt by the defendant, through service or

otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such

action or proceeding is based. . .”). 

On September 15, 2004, Brown & Williamson moved for dismissal of this

action due to insufficiency of service of process pursuant to Fed. R. Civ. P. 12(b)(5). No hearing

date was set, pursuant to E. D. Cal. L. R. 78-230(m) (“[a]ll motions . . . filed in cases wherein

one party is incarcerated and proceeding in propria persona, shall be submitted upon the record

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 California law permits service of the summons and complaint within three years of 3

filing the complaint. Cal. Code Civ. Proc. § 583.210(a). Defendant’s citation to Sacramento

County Superior Court Local Rule 11.03(A) (requiring service of complaint within 60 days after

complaint is filed) applies to civil cases filed after January 1, 2003. Plaintiff’s case was assigned

nonetheless to the Sacramento County Superior Court’s Case Management Program because he

had not filed an at-issue memorandum before July 1, 2004. Sacramento County Superior Court

Local Rule 11.00. As a result, plaintiff was repeatedly (and unsuccessfully) tasked with

demonstrating service upon all defendants in less than three years. As of June 2003, plaintiff had

attempted service only upon defendants Brown & Williamson and R. J. Reynolds; however, on

May 27, 2003, the Sacramento County Superior Court granted defendant R.J. Reynolds Tobacco

Holdings, Inc.’s motion to quash plaintiff’s service of summons on the ground that “attempted

service on a law firm that has represented defendant in other cases was improper.” See Exhibit

17 to Brown & Williamson’s Notice of Removal.

 Plaintiff substantially complied with the content requirements for service by mail (Cal. 4

Code Civ. Proc. § 415.30 (requiring prepaid first-class or air mailing of the summons and

complaint, two copies of the notice and acknowledgment of receipt; plaintiff failed to provide a

return envelope, postage prepaid, addressed to the sender)) and for service outside the state (Cal.

Code Civ. Proc. § 415.40 (requiring prepaid first-class mailing of the summons and complaint,

return receipt required)). However, plaintiff failed to meet the requirement of both provisions

that service be made upon a “person.”

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without oral argument”). 

Plaintiff twice requested, and this court granted, enlargement of time to serve

and file an opposition to the motion to dismiss and removal of the action from state court. 

On January 27, 2005, the court denied plaintiff’s third request for enlargement of time and

granted defendant’s motion to stay discovery pending this court’s ruling on defendant’s motion

to dismiss. Accordingly, plaintiff’s “Opposition” filed February 11, 2005 shall be stricken from

the record.

When service of process upon a defendant is attempted prior to removal, the

sufficiency of the service is determined by state law. Lee v. City of Beaumont, 12 F.3d 933, 937

(9th Cir. 1993). Plaintiff’s attempted service substantially complied with California timing and 3

content requirements but was fatally insufficient because sent to the wrong corporation and not 4

addressed to an authorized individual.

\\\\\

\\\\\

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 The court notes plaintiff’s explanation that Lane Limited was the only corporate 5

address provided on the label of Brown & Williamson’s Bugler cigarette papers. Plaintiff was

both negligent and expedient to rely on such information in lieu of examining Brown &

Williamson’s legally required corporate disclosure statements. While Brown & Williamson and

Lane Limited were both recently acquired by Reynolds American Inc. (see, e.g.,

http://biz.yahoo.com/e/040809,and http://today.reuters.com/stocks/key),the two are separate

companies, incorporated in different states with different principal places of business.

4

Plaintiff erred in attempting service upon Brown & Williamson through Lane

Limited. The companies are separate. Lane Limited is incorporated in New York with its 5

principal place of business in Georgia; Brown & Williamson is incorporated in Delaware with its

principal place of business in Kentucky. Declaration of Mark A. Peters, Vice President of

Finance for Lane Limited, at ¶¶ 2 through 4. “Lane Limited is not currently, and has never been

authorized to accept service of process or pleadings on behalf of Brown & Williamson.” Id., at ¶

5.

Additionally, plaintiff failed to serve process upon an individual authorized by

Cal. Code Civ. Proc. § 416.10, which requires that service on a corporation be made “by

delivering a copy of the summons and of the complaint: (a) To the person designated as agent

for service of process . . . [or] (b) To the president or other head of the corporation, a vice

president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager,

or a person authorized by the corporation to receive service of process . . .” “[A] plaintiff serving

a corporation at an address outside of California must comply with section 416.10. . . . Since a

corporate defendant can only be served through service on some individual person, the person to

be served is always different from the corporation.” Dill v. Berquist Construction Co., 24 Cal.

App. 4th 1426, 1435-1436 (1994).

Lane Limited’s forwarding of plaintiff’s attempted service to Brown &

Williamson, and hence Brown & Williamson’s actual notice of service, is unhelpful. While

California law permits, under limited circumstances, a finding of substantial compliance with

service requirements if a corporate defendant receives actual notice through an ostensible agent

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of the corporation, see, e.g., Pasadena Medi-Center Associates v. Superior Court, 9 Cal. 3d 773,

778 (1973) (“service upon a corporate agent with ostensible authority to accept service suffices to

acquire jurisdiction over the corporation”), service only upon the corporation is inadequate even

though ultimately received by an authorized individual, see, e.g., Dill v. Berquist Construction

Co., supra, 24 Cal. App. 4th at 1439 (substantial compliance cannot be found where summons

was addressed solely to the corporate defendant rather than to a person specified in section Cal.

Code Civ. Proc. § 416.10). 

This court finds, therefore, that plaintiff’s attempted service upon Brown &

Williamson was inadequate, requiring dismissal of Brown & Williamson.

Accordingly, IT IS HEREBY ORDERED that plaintiff’s “Opposition” filed

February 11, 2005 be stricken from the record. 

Further, IT IS HEREBY RECOMMENDED that defendant’s September 15,

2004 motion to dismiss be granted, and defendant Brown & Williamson be dismissed from this

action pursuant to Fed. R. Civ. P. 12(b)(5) for insufficiency of service of process. 

These findings and recommendations are submitted to the Honorable

Morrison C. England, Jr., the United States District Judge assigned to this case. 28 U.S.C.

§ 636(b)(l). Written objections may be filed within ten days after being served with these

findings and recommendations. The document should be captioned “Objections to Magistrate

Judge’s Findings and Recommendations.” The failure to file objections within the specified time

may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

Cir. 1991).

DATED: 8/14/06

 

/s/ Gregory G. Hollows 

GREGORY G. HOLLOWS

 U. S. MAGISTRATE JUDGE

NOW6:MOORE.Dsms

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