Law Offices of Amir Soleimanian et al v. Law Office of Kristina Wildeveld et al, No. 2:2012cv02564 - Document 58 (C.D. Cal. 2012)
Court Description: ORDER DENYING DEFENDANTS MOTION TO DISMISS AND VACATING DEFENDANTS EX PARTE APPLICATION 50 , 51 by Judge Dean D. Pregerson. Plaintiffs are ordered to file any opposition to Defendants Motion to Set Aside Clerks Entry of Default by December 7, 2012. The reply, if any, shall be filed by December 14, 2012. Oral argument on the Motion to Set Aside Clerks Entry of Default (DOCKET NUMBER 56) shall be heard, if required by the court, on January 7, 2012 at 10:00 a.m. The court notes that if the Motion to Set Aside Default is granted, Plaintiffs Motion for Permanent Injunction will be vacated. Under such circumstances, Plaintiffs may wish to seek preliminary injunctive relief.The parties are ordered to meet and confer telephonically within seven days of this order. Failure to comply with all terms of this order may result in sanctions including the dismissal of the action or denial of the Motion to Set Aside Default. (lc). Modified on 11/28/2012 (lc).
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Law Offices of Amir Soleimanian et al v. Law Office of Kristina Wildeveld et al Doc. 58 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 LAW OFFICE OF AMIR SOLEIMANIAN; AMIR SOLEIMANIAN (an individual) dba MR. TICKET, 13 Plaintiff, 14 v. 15 16 17 18 LAW OFFICES OF KRISTINA WILDEVELD, KRISTINA WILDEVELD,ESQ. (an individual), dba MR. TICKET, Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-02564 DDP (RZx) ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND VACATING DEFENDANTS’ EX PARTE APPLICATION [Dkt. Nos. 50, 57] 19 20 Presently before the court is Defendants’ Motion to Dismiss 21 for Insufficient Service. 22 the court DENIES the motion. 23 I. Background 24 After considering the parties’ papers, On March 26, 2012, Plaintiffs Law Offices of Amir Soleimanian 25 and Amir Soleimanian, an individual, filed a Complaint against 26 Defendants Kristina Wildeveld, Esq., an individual, and the Law 27 Offices of Kristina Wildeveld, alleging infringement of Plaintiffs’ 28 registered trademark MR. TICKET, for legal services. Defendants Dockets.Justia.com 1 filed no response to the Complaint, and Default was entered by 2 clerk on June 1, 2012. 3 June 6, 2012. 4 Permanent Injunction. On November 13, 2012, Defendants filed this 5 Motion to Dismiss, alleging that they had not been served with the 6 Complaint and summons. 7 II. Legal Standard On October 9, 2012, Plaintiffs filed a Motion for Under the Federal Rules of Civil Procedure, service to an 8 9 A corrected default was entered by clerk on individual may be made by following state law for service or by 10 complying with the procedures laid out in Rule 4(e) of the Federal 11 Rules of Civil Procedure. 12 served either in compliance with state law or in compliance with 13 Rule 4(h). 14 the law of either the state where the district court is located or 15 the state where service is made. 16 III. Discussion A corporation or other entity must be If state law regarding service is followed, it may be Fed. R. Civ. P. Rule 4(e)(1). Plaintiffs filed a Complaint against two defendants: Kristina 17 18 Wildeveld, an individual, and the Law Offices of Kristina 19 Wildeveld, a Nevada law firm of unknown entity status. 20 3,4. 21 entities, service to each must be proper. 22 682 F.2d 1344, 1347 (9th Cir. 1982). Compl. ¶¶ For the court to have personal jurisdiction over both See Jackson v. Hayakawa, 23 A. Service on Wildeveld as an Individual 24 Plaintiffs have provided a “Proof of Service by First Class 25 Mail” stating that copies of the complaint, summons, and other 26 documents were mailed to Kristina Wildeveld, Esq., (an individual) 27 at 726 S. Casino Center Blvd., Ste 211, Las Vegas, NV, 89101 (“the 28 Casino Center address”) on March 29, 2012. 2 (Dkt. No. 11.) In 1 addition, Plaintiffs provided an Affidavit of Service by Joe 2 Ricondo who stated that he served Kristina Wideveld, Esq., “by 3 personally delivering and leaving a copy” at the Casino Center 4 address with Maria Copodonna as “Secretary an agent lawfully 5 designated by statute to accept service of process.” 6 (Id.) Service is proper if it conforms to federal, California, or 7 Nevada law. Under California law, “[i]n lieu of personal delivery 8 . . . a summons may be served by leaving a copy of the summons and 9 complaint during usual office hours in his or her office . . . with 10 the person who is apparently in charge thereof, and by thereafter 11 mailing a copy of the summons and complaint by first-class mail . . 12 . to the person to be served at the place where a copy of the 13 summons and complaint were left.” Cal. Code Civ. P. § 415.20(a). 14 Here, the summons was left at the Casino Center address, where 15 the Law Offices of Kristina Wildeveld (“the Wildeveld Law Offices”) 16 were located, and which therefore could be considered to be Ms. 17 Wildeveld’s office. 18 Offices were in the process of moving from the Casino Center 19 address to a different Las Vegas address in the final weeks of 20 March 2012. 21 offices to facilitate this change and notices were posted in public 22 view referencing this move. 23 the final days that the office was open and although a single 24 employee was present at the office on Casino Center Blvd., no 25 documents, pleadings, or paperwork of any kind was ever served or 26 left with the front desk receptionist.” 27 employee, Mara Copodonna, affirms that during the last week of 28 March she was “alone in [the office at the Casino Center address] According to Defendants, the Wildeveld Law Defendants state that “employees were present in both March 29, 2012 would have been among 3 (Mot. at 6.) That single 1 with a partial desk and a phone, as all items had been removed to 2 the new office.” 3 (Copodonna Decl. ¶ 4.) Because she was sitting at a desk in Ms. Wildeveld’s office, 4 apparently acting as the receptionist, Ms. Capodonna could have 5 reasonably been considered to be the person in charge of the 6 office. 7 they have pointed out only that the Offices were in the process of 8 being moved. 9 it was improper to effect service to the person apparently in Defendants have not made any arguments to the contrary; However, this fact on its own does not suggest that 10 charge of the office, which was still staffed by employees of Ms. 11 Wildeveld’s law firm. 12 an appropriate person to receive service for Ms. Wildeveld.1 13 Defendants assert nonetheless that service was improper Thus the court finds that Ms. Capodonna was 14 because “no such person [as Maria Copodonna] has ever been employed 15 by Defendants.” 16 first name Mara, not Maria as stated on the proof of service. 17 (Copodonna Decl. ¶ 6.) 18 single letter in Ms. Copodonna’s first name fatal to otherwise 19 proper service. 20 first name, it is clearly referring to the same person who was in 21 fact an employee of the Law Offices of Kristina Wildeveld. 22 Additionally, Defendants offer a declaration from Ms. 23 (Mot. at 9.) Defendants’ receptionist bears the The court does not deem the omission of a Although the proof of service uses an incorrect Copodonna denying that she ever received the summons and complaint. 24 25 26 27 28 1 Because Ms. Copodonna was the person apparently in charge of the office, and therefore an appropriate person to accept service, it is immaterial that she “understands that she is not, nor has she ever been, an authorized person to receive process of service” for the Defendants (Mot. at. 9). It is also immaterial that the proof of service misdesignated her as “an agent lawfully designated by statute to accept service of process.” 4 1 (Copodonna Decl. ¶ 5.) 2 Defendants’ burden in challenging the validity of service. 3 signed return of service constitutes prima facie evidence of valid 4 service which can be overcome only by strong and convincing 5 evidence.” 6 F.3d 1161, 1166 (9th Cir. 2007)(internal quotations omitted). “[A] 7 mere allegation that process was not served without an additional 8 showing of evidence is insufficient to refute the validity of an 9 affidavit of service.” 10 11 This denial alone is insufficient to meet “A S.E.C. v. Internet Solutions for Business, Inc., 509 Freeman v. ABC Legal Services, Inc., 827 F.Supp.2d 1065, 1076 (N.D. Cal. 2011). The court finds that service to Kristina Wildeveld (an 12 individual) was proper under California law. Therefore the court 13 need not consider whether service was proper under Nevada law or 14 under Federal Rule 4(e)(2). 15 B. Service on the Law Offices of Kristina Wildeveld 16 Plaintiffs have provided a “Proof of Service by First Class 17 Mail” stating that copies of the complaint, summons, and other 18 documents were mailed to the Law Offices of Kristina Wildevelde at 19 726 S. Casino Center Blvd., Ste 211, Las Vegas, NV, 89101 (“the 20 Casino Center address”) on March 29, 2012. 21 addition, Plaintiffs provided an Affidavit of Service by Joe 22 Ricondo who stated that he served the Law Offices of Kristina 23 Wildeveld, “by personally delivering and leaving a copy” at the 24 Casino Center address with Maria Copodonna as “Secretary an agent 25 lawfully designated by statute to accept service of process.” 26 (Dkt. No. 10.) In Id. Under California law, “If a defendant is a corporate or 27 noncorporate entity, service may be made in the first instance, in 28 lieu of delivery of process to a specified officer or employee of 5 1 such entity personally, by leaving the papers in his office.” 2 West’s Ann. Cal. Civ. Code Pro. § 415.20, Comment - Judicial 3 Council (“Corporate and Noncorporate Entities”). 4 corporation is therefore proper if the papers are left with “a 5 person apparently in charge of his or her office, place of 6 business, or usual mailing address . . . at least 18 years of age, 7 who shall be informed of the contents thereof” and then by mailing 8 the complaint to the same address. 9 Copodonna was the person apparently in charge of the office of the Service on a As discussed above, Mara 10 Wildeveld Law Offices. 11 moving, Defendants do not allege that the Casino Center address was 12 not still a valid address. 13 Offices of Kristina Wildeveld was proper under California law and 14 that it therefore need not consider whether service was proper 15 under Nevada law or under Federal Rule 4(h)(1). 16 IV. CONCLUSION 17 Although the Offices were in the process of The court finds that service on the Law Defendants’ Motion to Dismiss is DENIED. The Ex Parte 18 Application to Shorten Time for Hearing on Defendants’ Motion to 19 Dismiss is VACATED. 20 Plaintiffs are ordered to file any opposition to Defendants’ 21 Motion to Set Aside Clerk’s Entry of Default by December 7, 2012. 22 The reply, if any, shall be filed by December 14, 2012. 23 argument on the Motion to Set Aside Clerk’s Entry of Default 24 (DOCKET NUMBER 56) shall be heard, if required by the court, on 25 January 7, 2012 at 10:00 a.m. The court notes that if the Motion to 26 Set Aside Default is granted, Plaintiffs’ Motion for Permanent 27 Injunction will be vacated. 28 may wish to seek preliminary injunctive relief. Oral Under such circumstances, Plaintiffs 6 1 2 3 The parties are ordered to meet and confer telephonically within seven days of this order. Failure to comply with all terms of this order may result in 4 sanctions including the dismissal of the action or denial of the 5 Motion to Set Aside Default. 6 7 8 IT IS SO ORDERED. 9 10 11 12 Dated: November 28, 2012 DEAN D. PREGERSON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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