United States District Court, W.D. Arkansas, Fayetteville Division
J & J SPORTS PRODUCTIONS, INC. PLAINTIFF
MIRANDA FERNADO a/k/a FERNANDO MIRANDA, individually and d/b/a MARIACHI'S GRILL a/k/a MARIACHI'S GRILL & CANTINA DEFENDANT
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court are Defendant Fernando Miranda's Motion
to'Dismiss (Doc. 8) and Brief in Support (Doc. 9),
Plaintiff J & J Sports Productions, Inc.'s ("J
& J") Statement in Opposition (Doc. 11), and Mr.
Miranda's Reply (Doc. 13). For the reasons given below,
Mr. Miranda's Motion is GRANTED, and J
& J's Complaint (Doc. 1) is DISMISSED WITHOUT
September 12, 2016, J & J initiated this case by filing
its Complaint against Mr. Miranda. See Doc. 1. In
its Complaint, J & J alleges that it owns exclusive
commercial distribution rights in a program televising the
September 14, 2013 fight between Floyd Mayweather, Jr. and
Saul Alvarez ("the Program"), and that on the day
of the fight, Mr. Miranda caused the Program to be
intercepted and published without J & J's permission
at Mariachi's Grill in Fayetteville, Arkansas.
See Doc. 1, ¶¶ 9-19. J & J's
Complaint sets forth three separate counts against Mr.
Miranda, for violations of 47 U.S.C. §§ 605 and
553, and the common-law tort of conversion.
Miranda has moved to dismiss J & J's Complaint under
Fed.R.Civ.P. 12(b)(4) and 12(b)(5), on the grounds that J
& J failed to provide sufficient service of process to
Mr. Miranda within the deadline imposed by Fed.R.Civ.P. 4(m),
which is 90 days from the date of the Complaint's filing.
Mr. Miranda is aware of only one attempt at service within
the 90-day window, and he contends that this attempt was
fatally deficient in two independent ways-first, that the
Complaint was not served upon him, his dwelling, or his agent
as required by Rule 4(e), and second, that the Complaint was
not accompanied by a summons as required by Rule 4(c)(1). Mr.
Miranda argues furthermore that these deficiencies were not
occasioned by good cause or excusable neglect, and that
therefore an extension of the deadline for service is
Mr. Miranda's objection goes not to the form of process
or content of the summons, but rather to the manner, method,
or lack of service itself, his Motion is properly brought
under Rule 12(b)(5) rather than Rule 12(b)(4). 5B Wright
& Miller, Federal Practice and Procedure: Civil 3d §
1353 (3d ed. 2004). "In a Rule 12(b)(5) motion, the
party making the service has the burden of demonstrating
validity when an objection to the service is made."
Roberts v. USCC Payroll Corp., 2009 WL 88563, at *1
(N.D. Iowa Jan 13, 2009) (internal quotation marks omitted).
If a defendant is not served within the time provided by the
Federal Rules of Civil Procedure, then the Court "must
dismiss the action without prejudice against that defendant
or order that service be made within a specified time. But if
the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period." Fed.R.Civ.P. 4(m) (emphasis added). "If
plaintiff fails to show good cause, the court still
may extend the time for service rather than dismiss
the case without prejudice." Kurka v. Iowa Cnty.,
Iowa, 628 F.3d 953, 957 (8th Cir. 2010) (emphasis in
original). "To warrant a discretionary extension, the
plaintiff must establish excusable neglect."
J concedes that a copy of the summons was not served with the
Complaint, but J & J does not concede that it failed to
serve the Complaint itself upon Mr. Miranda, his dwelling, or
his agent as required by Rule 4(e). See Doc. 11, pp.
2-3. However, the only evidence J & J offers to meet its
burden on this latter point is the Affidavit of Service (Doc.
7). J & J argues that this is all it needs, because
"a signed return of service is prima facie evidence of
valid service and sufficient in and of itself, which can only
be overcome by strong and convincing evidence."
See Doc. 11, p. 3 (quoting Datacom Sys., Inc. v.
JDL Digital Sys., Inc., 2009 WL 315720, at *2 (W.D. Ark.
Feb. 6, 2009) and Transamerica Life Ins. Co. v. IMG
Mktg., Inc., 2011 WL 861130, at *2 (E.D. Ark. Mar. 10,
2011)) (internal alterations, citations, and quotation marks
omitted). But while J & J has correctly stated the
general principle so far as it goes, common sense dictates
that it weighs in the opposite direction when the very face
of the Affidavit of Service itself plainly indicates that
service was invalid. That is the case here, because the
Affidavit of Service states that the Complaint was served
upon somebody named Armando Lopez (not Mr. Miranda) at
Mariachi's Grill (not Mr. Miranda's dwelling), and
provides no reason to believe that Mr. Lopez is Mr.
Miranda's agent who is authorized to receive service of
process on Mr. Miranda's behalf. See Doc. 7. In sum,
as to each of Mr. Miranda's objections, J & J has
failed to meet its burden of showing that valid service was
accomplished within the deadline set by the Federal Rules of
the Court must determine whether there is good cause for J
& J's deficient service. The Eighth Circuit has
A showing of good cause requires at least excusable
neglect-good faith and some reasonable basis for
noncompliance with the rules. Good cause is likely (but not
always) to be found when (1) the plaintiffs failure to
complete service in a timely fashion is a result of the
conduct of a third person, typically the process server, (2)
the defendant has evaded service of the process or engaged in
misleading conduct, (3) the plaintiff has acted diligently in
trying to effect service or there are understandable
mitigating circumstances, or (4) the plaintiff is proceeding
pro se or in forma pauperis. At its core, however, the
standard of good cause, like many others in the law, is
necessarily amorphous. Whether or not it has been satisfied
is largely dependent upon the facts of each individual case.
It is for this very reason that such a determination is
entrusted to the sound and considerable discretion of the
district court in the first instance.
Kurka, 628 F.3d at 957 (internal alterations,
quotation marks, and citations omitted).
the second and fourth circumstances are indisputably absent.
J & J argues, though, that the first and third
circumstances are present, at least to some extent. While the
Court agrees that the process server shares some
blame for J & J's failure to complete service, the
Court believes that under the facts of this particular case,
the ultimate responsibility for that failure rests on J &
J's shoulders, such that good cause does not exist here.
for J & J declares that on December 9, 2016, his office
"instructed the process server herein to serve all
initiating papers, including the Summons and Complaint, on
Defendant." (Doc. 11-1, ¶ 4). Since the Complaint
was filed on September 12 of that year, and Rule 4(m) imposes
a 90-day deadline for service, this means J & J did not
even begin to attempt service until a mere 2 days
before the deadline to complete that process-a very risky
delay for which J & J offers no explanation. If J & J
had been even a little more proactive about serving process,
it would have allowed itself ample time to shore up any
deficiencies in service that arose from confusion or error on
the part of its process server. But instead, J & J chose
to reduce its margin for error to zero. In the absence of ...