Unreported / Non-Citable
Background
Eduardo V. Diaz-Martinez, a former state detainee, sued several police officers in the Northern District of California, including Ryan McMahon. The operative pleading referenced in the order is the Third Amended Complaint (ECF No. 95). The court stated that, despite multiple attempts, it had been unable to serve McMahon, who is no longer employed by the Broadmoor Police District, and it cited earlier docket entries (ECF Nos. 15, 39 and 70) in that connection.
On May 22, 2026, Diaz-Martinez moved for authorization to serve McMahon by alternative means. He asserted that he could not obtain a valid address despite reasonable efforts. He listed requests for documents, calls to process servers who could not locate McMahon, emails and letters, public records searches, requests to department counsel, and several phone calls. These were allegations in the motion, not findings by the court.
The court observed that Federal Rule of Civil Procedure 4(e)(1) allows service by following state law. It also noted that California Code of Civil Procedure section 415.50 permits service by publication when the court is satisfied, on an affidavit, that the party cannot with reasonable diligence be served another way.
The Court’s Holding
The court denied the motion for alternative service without prejudice to refiling if necessary. It said Diaz-Martinez may be able to show that alternative service is warranted. It cited Calvert v. Al Binali for the principle that substitute service by publication is a last resort available only after reasonable diligence to locate the person. But it found the motion unsupported because Diaz-Martinez provided no evidence for the assertions in it. The court did not find that he lacked diligence and did not rule on the merits of the case. A without-prejudice denial is not a final judgment.
Separately, the court noted that McMahon had filed several documents pro se in a different case in the Eastern District of California. It took judicial notice of the docket and filings in McMahon v. Whitney, No. 23-cv-01972-KJM-JDP, under Federal Rule of Evidence 201, citing Reyn's Pasta Bella, LLC v. Visa USA, Inc. for the proposition that courts may notice public court filings. The court then ordered the Clerk to issue a summons and directed the United States Marshal to serve McMahon, without prepayment of fees, with the Third Amended Complaint, its attachments and a copy of the order, at an address in Vacaville, California. The order does not explain how that address was identified. It cautioned McMahon that Rule 4 requires him to cooperate in saving unnecessary costs of service.
Because the case is presently referred to Magistrate Judge Illman for mediation, the court said it will issue a later order setting the schedule for any additional briefing once service has been attempted. Whether Marshal service succeeds, whether alternative service will again be sought, and all substantive claims remain open.
Key Takeaways
- A party seeking alternative service, including service by publication under California law through Rule 4(e)(1), must back the motion with evidence of reasonable diligence rather than bare assertions.
- A denial without prejudice leaves the door open to refiling, and the order expressly allows Diaz-Martinez to renew the motion if necessary.
- A court may take judicial notice of public filings in another case, and here the court noted a defendant's pro se filings in an Eastern District case while ordering service.
- The court ordered the Marshal to attempt service without prepayment of fees but did not say why fees were waived, so the order should not be read as deciding any fee-status question.
- The order is a non-precedential trial-court procedural ruling, and nothing in it resolves the merits or the question of whether McMahon has been or will be served.
Why It Matters
The order shows a practical sequence for stalled service. The court explained that evidentiary support is required before alternative service is authorized, but it did not leave the plaintiff without recourse. It used information it learned from public court records to direct the Marshal to attempt conventional service first, which keeps the more drastic option of publication in reserve.
The ruling is a brief, unpublished district court order and carries no precedential weight. Its value lies in showing how one Northern District judge handled a service problem involving a former public employee who is hard to locate. The case remains pending, mediation referral continues, and additional briefing will be scheduled after the court learns the result of the Marshal's service attempt.