J&J Sports Productions, Inc. v. Bundee's, Inc., et al, No. 2:2018cv03480 - Document 33 (E.D. La. 2019)
Court Description: ORDER AND REASONS: For the foregoing reasons, defendant's 13 motion to dismiss is DENIED. Plaintiff shall have 30 days from the date of this order to properly serve Bundees. Signed by Judge Sarah S. Vance on 4/17/2019. (mm)
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J&J Sports Productions, Inc. v. Bundee&#039;s, Inc., et al Doc. 33 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J &J SPORTS PRODUCTIONS INC. VERSUS CIVIL ACTION NO. 18-3480 BUNDEE’S INC., ET AL. SECTION “R” (1) ORD ER AN D REASON S Before the Court is defendant Bundee’s m otion to dism iss for insufficient service of process. Plaintiff has not properly served Bundee’s and has not shown good cause for its failure. But because plaintiff’s failure to correctly serve Bundee’s is unintentional and has not prejudiced Bundee’s, dism issal is not warranted. I. BACKGROU N D This case arises out of a dispute regarding stream ing rights to a boxing m atch between Floyd Mayweather J r. and Manny Pacquiao.1 Plaintiff J &J Sports Productions is a distributor of closed circuit pay-per-view events. 2 Plaintiff alleges that it held the exclusive rights to distribute the boxing m atch.3 It alleges that defendants Charles Bell J r. and Gerald K. Sayles 1 2 3 R. Doc. 1. Id. at 4 ¶ 9. Id. at 2 ¶ 2. Dockets.Justia.com supervised and directed their em ployees to broadcast the m atch unlawfully at a business operating as Club Continental.4 On April 2, 20 18, plaintiff filed a com plaint against Bell, Sayles, and the business entity Bundee’s Inc., d/ b/ a Club Continental.5 Sum m onses were issued to all three defendants on April 3, 20 18.6 None was returned executed. On August 6, 20 18, the Court issued a show cause order directing plaintiffs to show good cause in writing within 20 days why defendants should not be dism issed for failure to prosecute.7 Plaintiff filed a m otion to extend the tim e for service, which the Court granted. 8 Plaintiff then m ade several attem pts to serve defendants. First, plaintiff attem pted to serve both Bell and Bundee’s at 10 953 Chaucer Street on August 10 , 20 18.9 Plaintiff then tried to serve Bell at 238 Solom on Drive on August 21, 20 18.10 Finally, plaintiff attem pted to serve both Bell and Bundee’s at 9734 Hayne Boulevard on Septem ber 6, 20 18.11 None of these attem pts was successful. On Septem ber 24, 20 18, the plaintiff issued a sum m ons to Bundee’s via the 4 5 6 7 8 9 10 11 Id. at 6-7 ¶ 13. R. Doc. 1. R. Doc. 4. R. Doc. 5. R. Doc. 8. R. Doc. 15; R. Doc. 18. R. Doc. 17. R. Doc. 16; R. Doc. 19. 2 Louisiana Secretary of State.12 After it was executed by the Secretary of State, J &J filed it into the record on October 9, 20 18.13 On the sam e day, plaintiff filed an executed sum m ons for Sayles.14 Bell rem ains unserved.15 On April 9, 20 19, the Court dism issed plaintiff’s case against Bell without prejudice for failure to show cause as to why he had not been served.16 Bundee’s has now filed a m otion to dism iss for insufficient service of process under Rule 12(b)(5).17 Plaintiff opposes the m otion, because it alleges that it attem pted to serve Bell, Bundee’s agent for service of process, at three different addresses unsuccessfully before serving the Louisian a Secretary of State.18 It therefore argues that service on the Secretary of State was proper.19 II. LEGAL STAN D ARD Federal Rule of Civil Procedure 12(b)(5) allows a defendant to dism iss claim s against it because of the plaintiff’s insufficient service of process 12 13 14 15 16 17 18 19 R. Doc. 10 . R. Doc. 11. R. Doc. 12. R. Doc. 30 . R. Doc. 31. R. Doc. 13. R. Doc. 22. Id. 3 under Federal Rule of Civil Procedure 4. Fed. R. Civ. P. 12(b)(5). “The district court enjoys a broad discretion in determ ining whether to dism iss an action for ineffective service of process.” George v. U.S. Dep’t of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986). Under Rule 4, a plaintiff m ust effect proper service on a defendant within 90 days after filing the com plaint. Fed. R. Civ. P. 4(m ). The Rule provides: If a defendant is not served within 90 days after the com plaint is filed, the court—on m otion or on its own after notice to the plaintiff—m ust dism iss the action without prejudice against that defendant or order that service be m ade within a specified tim e. But if the plaintiff shows good cause for the failure, the court m ust extend the tim e for service for an appropriate period. Id. Federal Rule of Civil Procedure 4(h) governs service on a corporation, partnership, or association. The Rule provides that corporations m ust be served in the United States, either (1) “in the m anner prescribed by Rule 4(e)(1) for serving an individual,” or (2) “by delivering a copy of the sum m ons and of the com plaint to an officer, a m anaging or general agent, or any other agent authorized by appointm ent or by law to receive service of process and— if the agent is one authorized by statute and the statute so requires—by also m ailing a copy of each to the defendant.” Fed. R. Civ. P. 4(h). Rule 4(e)(1) allows a plaintiff to serve an individual by “following state law for serving a sum m ons.” Fed. R. Civ. P. 4(e)(1). 4 In Louisiana, corporations m ust be served “by personal service on any one of its agents for service of process.” La. Code. Civ. P. art 1261. “Service of process directed to a corporate defendant and m ade on one other than the person authorized to accept service is illegal and without effect.” State v. Kee Food, Inc., 232 So. 3d 29, 34 (La. App. 1 Cir. 20 17). But if the person attem pting to m ake service “certifies that he is unable, after due diligence, to serve the designated agent,” service m ay be m ade: (1) by personal service of an officer or director nam ed in the last report filed with the Secretary of State; (2) by personal service on any em ployee where the business of the corporation is regularly conducted; or (3) by registered or certified m ail. Id.; La. R. S. 320 4. Finally, “[i]f the officer m aking service certifies that he is unable, after diligent effort, to have service m ade as provided in Article 1261, then the service m ay be m ade personally on the secretary of state, or on a person in his office designated to receive service of process on corporations.” La. Code Civ. P. art. 1262. Thus, service m ay not be m ade via the Secretary of State’s office under Louisiana law unless a plaintiff certifies that service cannot be com pleted using any of the m ethods provided in Article 1261. 5 III. D ISCU SSION Defendant argues that plaintiff’s service on the Secretary of State was im proper because Louisiana law requires personal service of process on an agent authorized to receive service.20 Bell is the only agent authorized to receive service for Bundee’s.21 Plaintiff has alleged that service on the Louisiana Secretary of State was proper because it was not able to serve Bell personally despite three attem pts.22 This account is corroborated by the three failed attem pts to serve Bell in the record.23 But a plaintiff m ay effect service using a m ethod other than on the registered agent only when the process server, not the plaintiff, certifies that he is unable, after due diligence, to serve the designated agent. La. Code Civ. P. art 1261. See Rabito v. McClain Invs., LLC, _ So. 3d _ (La. App. 4 Cir. 20 19), 20 19 WL 30 20 63, at *3 (J an. 23, 20 19) (“Although this Court has never directly addressed the proper interpretation of the ‘person attem pting to m ake service’ we have evinced an understanding that such person is the process server.”). The process server has not certified that he was unable to serve Bell despite diligent effort. 20 21 22 23 R. Doc. 13-1 at 3-4. R. Doc. 13-2. R. Doc. 22 at 1-3. R. Doc. 17; R. Doc. 18; R. Doc. 19. 6 Further, even if the process server had m ade the required certification, service on the Secretary of State would not be proper, unless service could not be m ade under the alternative procedures given in Article 1261. See La. Code Civ. P. art 1262. There is no evidence in the record that plaintiff attem pted to serve Bundee’s though the alternative m easures provided in Article 1261. For exam ple, plaintiff could have personally served Sayles, who was listed as an officer of Bundee’s on the com pany’s business last report filed with the Secretary of State.24 Indeed, plaintiff effectuated service on Sayles on J une 2, 20 18.25 In addition, plaintiff has not shown due diligence because it attem pted to serve Bell at 238 Solom on Drive, the address listed in the com pany’s business filings, only once.26 The unexecuted sum m ons states that there was “no answer at [the] residence.”27 A single unsuccessful attem pt at the address listed by the Secretary of State, even when com bined with two attem pts at different addresses, does not constitute due diligence under Louisiana law. See Gordon v. A-1 St. Bernard Taxi & Delivery , 226 So. 3d 494, 50 1 (La. App. 4 Cir. 20 17) (m ultiple attem pts, when only one was at the 24 25 26 27 R. Doc. 31-2. R. Doc. 12. See R. Doc. 17. Id. 7 correct address, is not diligent effort); La. Dist. Council of Assem blies of God, Inc. v. Victory Tem ple Assem bly of God, 376 So. 2d 169, 171 (La. App. 4 Cir. 1979) (six attem pts to serve a church, when none was on a Sunday m orning, is not a diligent effort). Plaintiff has not provided docum entation from the process server certifying that he was unable to serve Bundee’s after a diligent effort, nor has it shown due diligence in its efforts to serve Bundee’s. Service on the Secretary of State was therefore im proper. Plaintiff argues that its requirem ent of service on Bundee’s should be waived or m odified because the com pany’s lawyer refuses to disclose Bell’s whereabouts or m ake him available for service.28 It is true that, “[t]he purpose of Rule 4(m ) is to prod the slow-footed plaintiff, not to reward the crafty or evasive defendant.” Wright & Miller, 4B Federal Practice & Procedure § 1137 (4th ed. 20 18). Courts have often found good cause for a plaintiff’s failure to effect service tim ely when a defendant has actual notice and m ay be evading service. See Fed. R. Civ. P. 4, Com m ents to the 1993 Am endm ent (“Relief m ay be justified, for exam ple . . . if the defendant is evading service or conceals a defect in attem pted service.”); Karlsson v. Rabinow itz, 318 F.2d 666, 668 (4th Cir. 1963) (“[W]here actual notice of the com m encem ent of the action and the duty to defend has been received by the 28 R. Doc. 22-1 at 2-3. 8 one served, the provisions of [Rule 4] should be liberally construed to effectuate service and uphold the jurisdiction of the court, thus insuring the opportunity for a trial on the m erits.”). There is no evidence of evasion in this case. Plaintiff argues that counsel for Bundee’s should have filed an answer to its com plaint, but it adm its that it did not form ally request a waiver of service from him . 29 Sim ilarly, plaintiff did not ask Bundee’s counsel for Bell’s current address, nor did it ask for help in locating Bell so that he could be served. Plaintiff m erely asserts that it received an em ail from Bell’s attorney, that it requested that Bundee’s file an answer to its com plaint, and that defendant did not respond or file an answer.30 While it is possible that Bell has been evading service, the current record does not dem onstrate that his failure to receive service is deliberate. The Court therefore does not find that plaintiff has shown good cause for its delay in service on the basis of defendant’s alleged efforts to evade service. Nonetheless, dism issal is not appropriate on the current record. A district court has discretion to extend a plaintiff’s deadline even without a showing of good cause. Thom pson v. Brow n, 91 F.3d 20 , 21 (5th Cir. 1996) 29 30 R. Doc. 22-1 at 2. Id. at 1-2. 9 (“If good cause does not exist, the court m ay , in its discretion, decide whether to dism iss the case without prejudice or extend tim e for service.”) (em phasis in original). If a dism issal under the discretionary provisions of Rule 4 will likely bar future litigation, the dism issal should “be reviewed under the sam e heightened standard used to review a dism issal with prejudice.” Millan v. USAA Gen. Indem . Co., 546 F.3d 321, 325-26 (5th Cir. 20 0 8) (citing Boazm an v. Econ. Lab., Inc., 537 F.2d 210 , 213 (5th Cir. 1976)). Under this heightened standard, dism issal “is warranted only where ‘a clear record of delay or contum acious conduct by the plaintiff’ exists and a ‘lesser sanction would not better serve the interests of justice.’” Id. at 326 (quoting Gray v. Fid. Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981)). When the Fifth Circuit has affirm ed dism issals with prejudice, “it has generally found at least one of three aggravating factors: (1) delay caused by [the] plaintiff him self and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.” Id. (quoting Price v. McGlathery , 792 F.2d 472, 474 (5th Cir. 1986)). The conduct in question in this case occurred on May 2, 20 15.31 Thus, plaintiff’s claim s would likely be barred by the relevant statutes of lim itations. There is no evidence that plaintiff caused the delay. Nor is there 31 R. Doc. 1 at 5 ¶ 12. 10 evidence of prejudice to the defendant, because defendant is aware of this action despite being served im properly. Finally, there is no evidence that the delay was caused by plaintiff’s intentional conduct. Indeed, the evidence indicates that plaintiff has been attem pting in good faith to serve defendant, and that defendant has not chosen to help plaintiff in its attem pts. Therefore, dism issal is not warranted. IV. CON CLU SION For the foregoing reasons, defendant’s m otion to dism iss is DENIED. Plaintiff shall have 30 days from the date of this order to properly serve Bundee’s. New Orleans, Louisiana, this _17th _ _ _ _ day of April, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 11
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