1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITEDHEALTH GROUP Case No.: 24-CV-2130 JLS (DTF) INCORPORATED, a Delaware 12 corporation, ORDER GRANTING PLAINTIFF’S 13 EX PARTE RENEWED MOTION Plaintiff,

FOR LEAVE TO SERVE

14 v. DEFENDANTS VIA ALTERNATIVE 15 MEANS ELAINE SELAN, an individual; 16 UNITEDHEALTH GROUP (ECF No. 11) INCORPORATED, a California nonprofit 17 corporation; and DOES 1-10, inclusive, 18 Defendants. 19 20 Presently before the Court are Plaintiff UnitedHealth Group Incorporated’s Ex Parte 21 Motion for Leave to Serve Defendants via Alternative Means (“Mot.,” ECF No. 11) and 22 Memorandum and Points of Authorities in Support thereof (“Mem.,” ECF No. 11-1). 23 Plaintiff seeks the Court’s permission to accomplish service by publication as it has not 24 been able to successfully serve Defendants Elaine Selan and UnitedHealth Group 25 Incorporated of California (“Defendant UHG”) (collectively, “Defendants”). Defendants 26 have not filed an objection to the Motion. Having considered Plaintiff’s Motion, the 27 evidence, and the law, the Court GRANTS Plaintiff’s Motion. 28 / / / 1 BACKGROUND 2 Plaintiff UnitedHealth Group Incorporated alleges that Defendant Elaine Selan 3 registered a nonprofit mutual benefit corporation, which she called UnitedHealth Group 4 Incorporated of California, using Plaintiff’s trade name and mark. See ECF No. 1 5 (“Compl.”) ¶ 5. This “unauthorized corporate registration,” Plaintiff alleges, “has already 6 resulted in actual confusion.”1 Id. ¶ 4. 7 Plaintiff filed suit against Defendants on November 13, 2024, seeking injunctive 8 relief and treble damages under the Lanham Act, amongst other remedies. Id. at Prayer 9 for Relief. On February 11, 2025, Plaintiff’s counsel Kenneth L. Wilton filed a declaration 10 outlining Plaintiff’s mired efforts to serve Defendants. See ECF No. 7. Yet Plaintiff did 11 not formally request any relief, so on May 5, 2025, the Court ordered Plaintiff to show 12 cause why the action should not be dismissed for failure to timely effect service. See ECF 13 No. 8. Plaintiff then timely filed its first Motion to serve Defendants by publication on 14 June 4, 2025, ECF No. 9, but the Court denied the request on several grounds, see ECF 15 No. 10 (“Order”). Despite concluding that Plaintiff had exercised reasonable diligence in 16 serving Selan, the Court found that Plaintiff’s service attempts on Defendant UHG had not 17 “been as numerous or varied,” thus falling short of the “reasonable diligence” standard. Id. 18 at 5. But even if Plaintiff had exercised reasonable diligence in serving Defendant UHG, 19 the Court continued, Plaintiff’s global request with respect to both Defendants was 20 additionally flawed because Plaintiff had not demonstrated that a cause of action exists 21 against Defendants as is required by California Civil Procedure Code Section 415.50(a)(1). 22 Id. at 6. The Court, consequently, denied the Motion without prejudice to Plaintiff 23 renewing its request within forty-five days. Id. at 7. 24 The instant Motion reflects Plaintiff’s renewed request. This time, Plaintiff has met 25 its burden to proceed with service by publication. 26 27 28 1 As evidence of said confusion, Plaintiff alleges that Selan was served as Plaintiff’s registered agent of 1 LEGAL STANDARD 2 Federal Rule of Civil Procedure 4(e)(1) provides that an individual may be served 3 by “following state law for serving a summons in an action brought in courts of general 4 jurisdiction in the state where the district court is located or where service is made.” 5 Additionally, Federal Rule of Civil Procedure 4(h)(1)(A) provides that a corporation may 6 be served “in the manner prescribed by Rule 4(e)(1) for serving an individual.” 7 California law, in turn, provides that “[a] summons may be served by publication if 8 upon affidavit it appears to the satisfaction of the court in which the action is pending that 9 the party to be served cannot with reasonable diligence be served in another manner 10 specified in this article.” Cal. Civ. Proc. Code § 415.50(a). To determine whether a 11 plaintiff has exercised “reasonable diligence,” courts assess whether the plaintiff “took 12 those steps a reasonable person who truly desired to give notice would have taken under 13 the circumstances.” Donel, Inc. v. Badalian, 150 Cal. Rptr. 855, 859 (Ct. App. 1978). 14 Because of due process concerns, however, service by publication is only allowed “as a 15 last resort.” Id. at 858. 16 “Before allowing a plaintiff to resort to service by publication, the courts necessarily 17 require him to show exhaustive attempts to locate the defendant, for it is generally 18 recognized that service by publication rarely results in actual notice.” Watts v. Crawford, 19 896 P.2d 807, 811 n.5 (Cal. 1995) (citation and internal quotation marks omitted). 20 Accordingly, “[t]he term ‘reasonable diligence’ . . . denotes a thorough, systematic 21 investigation and inquiry conducted in good faith by the party or his agent or attorney.” Id. 22 (citations omitted). However, “[a] number of honest attempts to learn defendant’s 23 whereabouts or his address by inquiry of relatives, . . . and by investigation of appropriate 24 city and telephone directories, voter registries, and assessor’s office property indices 25 situated near the defendant’s last known location, generally are sufficient.” Id. (citations 26 omitted). 27 Moreover, a party requesting service by publication must show that a “cause of 28 action exists against the party upon whom service is to be made or he or she is a necessary 1 or proper party to the action.” Cal. Civ. Proc. Code § 415.50(a)(1). Such a showing must 2 be made by “independent evidentiary support, in the form of a sworn statement of facts.” 3 Cummings v. Brantley Hale, No. 15-cv-04723-JCS, 2016 WL 4762208, at *2 (N.D. Cal. 4 Sept. 13, 2016) (quoting McNamara v. Sher, No. 11-CV-1344-BEN WVG, 5 2012 WL 760531, at *4 (S.D. Cal. Mar. 8, 2012)). 6 ANALYSIS 7 Having once before rejected Plaintiff’s request, the Court is now assured that 8 Plaintiff has satisfied Section 415.50(a) of the California Civil Procedure Code, thus 9 unlocking service by publication as an available option for serving process on Defendants. 10 While the Court previously found that Plaintiff had exercised reasonable diligence in 11 serving Selan, it now finds that Plaintiff has exercised reasonable diligence in serving both 12 Defendants. And whereas the Court previously found Plaintiff’s evidentiary support 13 regarding the existence of a cause of action fatally lacking, Plaintiff has rectified that 14 oversight in its Renewed Motion. 15 Plaintiff’s efforts to serve Selan are detailed in the Court’s prior Order denying 16 Plaintiff’s first request to serve by publication and need not be repeated here. See Order 17 at 2. It suffices to say that the Court’s prior conclusion that Plaintiff had exercised 18 reasonable diligence to serve Selan remains valid in light of the extensive efforts taken by 19 Plaintiff to locate all possible known addresses where Selan could potentially be found. 20 See id. at 5. 21 As for Defendant UHG, the Court is likewise now persuaded that Plaintiff has 22 exercised reasonable diligence to effect service. Previously, the Court noted that Plaintiff 23 had “tried to serve Defendant UHG only twice,” both times sending a process server to the 24 principal address listed on Defendant UHG’s Articles of Incorporation in Sheridan, 25 Wyoming. See id. at 5–6. Although that “address turned out not to be the registered agent 26 of service for Defendant UHG,” the Court determined that neither of the two attempts 27 “seem[ed] likely to truly give notice to Defendant UHG,” id. at 6, so Plaintiff was ordered 28 to make further service attempts or to offer a more detailed justification for why further 1 attempts would be futile. Plaintiff has now adequately done so. 2 In a declaration filed by Plaintiff’s counsel alongside the Renewed Motion, Plaintiff 3 adds context to its service attempts on Defendant UHG, asserting that the principal address 4 listed on Defendant UHG’s Articles of Incorporation was “used by many individuals 5 seeking to defraud the public in different ways,” thus frustrating plaintiffs’ efforts to serve 6 process on those individuals. Second Declaration of Kenneth L. Wilton (“Wilton Decl.”) 7 ¶ 10, ECF No. 11-2. Supporting this assertion are multiple articles in the Sheridan Press— 8 a news periodical located in Sheridan, Wyoming—narrating how the principal address 9 operates as “a front” for thousands of sham businesses. Id. ¶ 9 (citing ECF No. 11-3 10 at 6-15). Plaintiff’s counsel then clarifies that, even after the two service attempts at the 11 fraudulent Sheridan, Wyoming address, he directed a process server to make an additional 12 attempt at the San Ysidro, California PostalAnnex box registered to Selan, though that 13 attempt was also unsuccessful. Id. ¶ 21. This final attempt, Plaintiff argues, can be credited 14 as a service attempt on Selan both in her individual capacity and simultaneously in her 15 capacity as a registered agent for Defendant UHG. Mem. at 5–6 (first citing Pierce v. 16 Jardine Constr. Co., No. 23-cv-9183-MWF, 2024 WL 1680095, at *2 (C.D. Cal. Mar. 4, 17 2024); and then citing GS Holistic, LLC v. Bubbles Smoke Shop, No. 23-cv-3391-MWF, 18 2023 WL 6787773, at *2 (C.D. Cal. Sept. 5, 2023)). In light of this newly presented 19 evidence and argument, the Court now agrees that Plaintiff has exercised reasonable 20 diligence with respect to Defendant UHG. 21 Finally, whereas Plaintiff had previously failed to provide independent evidentiary 22 support from a witness with personal knowledge attesting to the existence of a cause of 23 action, such error has been remedied. Attached to its Renewed Motion is a sworn 24 declaration by Linhda Nguyen, Deputy General Counsel for UnitedHealth Group 25 Incorporated. See Declaration of Linhda Nguyen (“Nguyen Decl.”), ECF No. 11-4. 26 Nguyen, in her declaration, states on personal knowledge that Plaintiff has continuously 27 used its trademarks and trade name in interstate commerce for several decades in 28 connection with certain healthcare services, id. ¶ 5, but that Defendants’ use of identical 1 ||marks and an identical name have already resulted in at least two instances of actual 2 ||confusion, id. §{] 14-15. In both instances, according to Nguyen, a third-party plaintiff in 3 unrelated lawsuits confused Plaintiff with Defendant UHG and mistakenly served process 4 Selan under the false impression that Selan was Plaintiff's registered agent. See id. 5 16-17. Nguyen’s declaration persuasively demonstrates that a cause of action exists 6 against Defendants. See Herb Reed Enters., LLC v. Fla. Ent. Mgmt., Inc., 736 F.3d 1239, 7 || 1247 (9th Cir. 2013) (articulating the elements of a trademark infringement claim). 8 CONCLUSION 9 Satisfied that Plaintiff is entitled to proceed via service by publication, the Court 10 GRANTS Plaintiff's Renewed Motion for Leave to Serve Defendants via Alternative 11 Means (“ECF No. 11). Given Defendants’ ostensible connection with San Diego County 12 || by virtue of Selan’s previously rented box at a San Ysidro PostalAnnex, the Court endorses 13 ||Plaintiff's proposal of service by publication in the San Diego Union-Tribune. 14 || Accordingly, the Court ORDERS Plaintiff to serve Defendants by publication by 15 || publishing a copy of the Complaint (ECF No. 1) and Summons (ECF No. 5) in the San 16 ||Diego Union-Tribune in accordance with the procedures prescribed by California 17 ||Government Code Section 6064. Plaintiff SHALL commence the publication process 18 || within twenty-one (21) days of the date on which this Order is electronically docketed, and 19 || Plaintiff SHALL file proof of service within fourteen (14) days of completion of that 20 process. Failure to serve Defendants by publication within the timeline allotted above 21 result in the dismissal of this action, without prejudice, pursuant to Federal Rule of 22 Procedure 41(b). See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 23 || 890-91 (9th Cir. 2019) (explaining that courts may dismiss an action under Rule 41(b) for 24 || failure to comply with a court order). 25 IT IS SO ORDERED. 26 llDated: August 26, 2025 jae LL. Li moma 27 on. Janis L. Sammartino 28 United States District Judge