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J & J Sports Productions, Inc v. Fernado

United States District Court, W.D. Arkansas, Fayetteville Division

February 28, 2017

J & J SPORTS PRODUCTIONS, INC. PLAINTIFF
v.
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

         Currently 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 PREJUDICE.

         I. BACKGROUND

         On 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.

         Mr. 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 unwarranted.

         II. LEGAL STANDARD

         Since 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." Id.

         III. DISCUSSION

         J & 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.[1] 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 Civil Procedure.

         Thus, the Court must determine whether there is good cause for J & J's deficient service. The Eighth Circuit has explained:

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).

         Here, 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.

         Counsel 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 ...


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