Broadcast Music Inc et al v. El Volcan Social Club Inc et al, No. 3:2013cv01760 - Document 16 (N.D. Tex. 2013)

Court Description: Memorandum Opinion and Order denying as moot 13 MOTION for Substitute Service of Process filed by Broadcast Music Inc, Sony/ATV Latin Music Publishing LLC. (Ordered by Judge Barbara M.G. Lynn on 7/11/2013) (aaa)

Download PDF
Broadcast Music Inc et al v. El Volcan Social Club Inc et al Doc. 16 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION BROADCAST MUSIC, INC., SONY/ATV LATIN MUSIC PUBLISHING LLC, § § § § § § § § § § § § § § Plaintiffs, v. EL VOLCAN SOCIAL CLUB, INC. d/b/a FAR WEST/EL VOLCAN SOCIAL CLUB, AND ALFREDO HINOJOSA, individually, Defendants. Civil Action No. 3:13-cv-01760-M MEMORANDUM OPINION AND ORDER Before the Court is Plaintiffs’ Motion for Substitute Service [Docket Entry #13]. For the reasons set forth below, the Court DENIES Plaintiffs’ Motion as moot. I. FACTUAL AND PROCEDURAL BACKGROUND This case arises from alleged copyright infringement by Defendants El Volcan Social Club, Inc. (“El Volcan”) and Alfredo Hinojosa (“Hinojosa”). Plaintiffs successfully served El Volcan, but were unsuccessful in their three attempts to serve Hinojosa. Pls.’ Mot. for Substitute Service of Process at 2. Plaintiffs filed the instant motion on June 19, 2013 [Docket Entry #13]. On July 9, 2013, Hinojosa filed his answer to Plaintiffs’ Complaint [Docket Entry #14]. II. ANALYSIS Rule 12(h)(1) of the Federal Rules of Civil Procedure provides that a party waives certain defenses, including the defense of insufficient service of process, by failing to either make it in a motion under Rule 12, or include it in a responsive pleading. Fed. R. Civ. P. 12(h)(1); Fed. R. Page 1 of 2 Dockets.Justia.com Civ. P. 12(b)(5). If a party does not make a motion under Rule 12, he must include the defense of insufficiency of service of process in his responsive pleading. Golden v. Cox Furniture Mfg. Co., Inc., 683 F.2d 115, 118 (5th Cir. 1982). Objections to service of process “must be raised in a timely fashion, i.e., as a party’s first pleading in the case, or they are waived.” Broadcast Music, Inc. v. M.T.S. Enterprises, Inc., 811 F.2d 278, 281 (5th Cir. 1987) (citing Fed. R. Civ. P. 12(h)(1); Giannakos v. M/V Bravo Trader, 762 F.2d 1295, 1298 (5th Cir. 1985). Hinojosa has failed to file any motion contesting the alleged insufficient service, and did not raise insufficient service as an affirmative defense in his answer. Def.’s Answer and Affirmative Defenses at 4–5. Any subsequent attempt to raise insufficient service as a defense will be “untimely,” and, thus, Hinojosa’s ability to raise such a defense is precluded. See Broadcast Music, 811 F.2d at 281. For all of these reasons, Plaintiffs’ Motion is DENIED as moot. SO ORDERED. Date: July 11, 2013. Page 2 of 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.