Joe Hand Promotions, Inc. v. Koda et al

Filing 10

OPINION AND ORDER that plf Joe Hand Promotions, Inc.'s 9 motion to extend time to serve dft for 90 days is granted and that plf Joe Hand Promotions, Inc. has until 1/19/2015, to serve dft Steven Hiro Koda. Signed by Honorable Judge Myron H. Thompson on 12/31/2014. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JOE HAND PROMOTIONS, INC., )
)
Plaintiff,
)
)
v.
)
)
STEVEN HIRO KODA and CLUB )
BTS, LLC d/b/a Club BTS,
)
)
Defendants.
)

CIVIL ACTION NO.
2:14cv623-MHT
(WO)

OPINION AND ORDER
Plaintiff Joe Hand Promotions, Inc. brought this
lawsuit against defendants Steven Hiro Koda and Club
BTS, LLC, asserting that Koda and Club BTS violated one
of two provisions in Title 47 of the United States
Code, each of which provides a private right of action
for unlawful interception of certain broadcast signals.*

* One of those provisions creates a private right
of action for an aggrieved party against third parties
who obtain unauthorized reception of communications
service offered over a cable system.
47 U.S.C.
§ 553(c)(1).
The other creates a private right of
action for an aggrieved party against third parties who
(footnote continued)

See

47

U.S.C.

§§

553,

605.

subject-matter jurisdiction.

The

court

has

See 28 U.S.C. § 1331; 47

U.S.C. § 553(c)(1); 47 U.S.C. § 605(e)(3)(A).

The case

is now before this court on Joe Hand Promotions’ motion
to extend time to serve Koda.

For the reasons set out

below, the motion will be granted.

I. BACKGROUND
On

June

23,

complaint

in

this

According

to

the

2014,

Joe

court

Hand

against

complaint,

Promotions
Koda

Koda

and

“is

an

filed

Club

a

BTS.

officer,

director, shareholder, and/or principal of Club BTS.”
Compl. (doc. no. 1), ¶ 6.

The complaint alleges that

Joe Hand Promotions entered into a contract that gave
it the right to distribute a broadcast of a UFC fight
that aired on August 7, 2010.

The complaint further

engage in unauthorized interception of “satellite cable
programming”.
47 U.S.C. § 605.
Joe Hand Promotions
alleges in its complaint that it is unable to
determine, without discovery, which provision was
violated.
2

alleges that Koda and Club BTS unlawfully intercepted
the broadcast signal and exhibited it at the Club BTS
establishment in Prattville, Alabama.
Joe Hand Promotions completed service on Club BTS
on July 17, 2014, and Club BTS’s answer was due August
7.

No

answer

was

filed,

however,

and

Joe

Hand

Promotions filed a motion for entry of default against
Club BTS on September 23.
Joe Hand Promotions attempted service on Koda, but,
according to a document on file with the court, on
August 1 the summons was returned unexecuted as to Koda
with the notation, “Return To Sender, Unclaimed, Unable
To Forward.”

Notice (doc. no. 6).

Then, on October

10, Joe Hand Promotions filed a motion requesting an
extension of time to serve Koda, seeking an additional
90

days

to

serve

him.

In

the

motion,

Joe

Hand

Promotions alleges that, “despite due diligence,” it
has not been able to complete service on Koda.
Mot.

Extend

Time

to

Serve

3

(doc.

no.

9),

¶

Pl.’s
2.

It

asserts that a denial of an extension of time to serve
Koda would result in a miscarriage of justice because
“Koda

would

be

rewarded

for

making

his

whereabouts

difficult to obtain and/or evading service.”
Mot. Extend Time to Serve (doc. no. 9), ¶ 6.

Pl.’s
Finally,

Joe Hand Promotions alleges that it “has discovered new
information which would aid it in completing service on
... Koda” and that Koda would not be prejudiced by an
extension

because

there

are

“no

pending

hearings.”

Pl.’s Mot. Extend Time to Serve (doc. no. 9), ¶ 5.
Neither Koda nor Club BTS has filed any motions or
pleadings in this case,

although the court realizes

that Koda cannot respond if he does not know of the
suit.

II. STANDARD FOR EXTENSION OF TIME
Federal Rule of Civil Procedure 4(m) provides that
the deadline for service of process is 120 days after
the complaint is filed:

4

“If a defendant is not served within
120 days after the complaint is filed,
the court--on motion or on its own
after notice to the plaintiff--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).

This rule has both “mandatory

and discretionary components.”

Boyd v. Koch Foods of

Alabama, LLC, No. 2:11cv748-MHT, 2011 WL 6141064, at *2
(M. D. Ala. Dec. 8, 2011) (Thompson, J.).
if

good

cause

is

shown,

the

extension of time for service.

court

On one hand,

must

See id.

grant

the

On the other

hand, if good cause is not shown, then a district court
has discretion whether to extend the time for service.
See Horenkamp v. Van Winkle & Co., Inc., 402 F.3d 1129,
1132 (11th Cir. 2005).

Application of Rule 4(m) may

thus involve a two-part analysis.
The first part of this analysis is a good-cause
inquiry.

The Eleventh Circuit Court of Appeals has

5

explained

that,

“Good

cause

exists

‘only

when

some

outside factor[,] such as reliance on faulty advice,
rather

than

service.’”

inadvertence

or

negligence,

prevented

Lepone–Dempsey v. Carroll Cnty. Comm’rs,

476 F.3d 1277, 1281 (alteration in original) (quoting
Prisco v. Frank, 929 F.2d 603, 604 (11th Cir.1991) (per
curiam),

superseded

in

part

by

rule

Horenkamp, 402 F.3d at 1132, n. 2).

as

stated

in

To show good

cause, then, a plaintiff “must show how he or she ‘(1)
has proceeded in good faith; (2) has a reasonable basis
for noncompliance and (3) the basis for the delay was
more than simple inadvertence or mistake.’”

Welch v.

Dale, No. 3:12cv393-MHT, 2012 WL 6725647, at *1 (M. D.
Ala. Dec. 27, 2012) (Thompson, J.) (quoting Durgin v.
Mon,

659

F.

Supp.

2d

1240,

1258

(S.D.

Fla.

2009)

(Marra, J.)).
There is a second, alternative analysis, however,
which is to determine whether the district court should
use its discretion to grant the extension despite the

6

movant’s
Dempsey,

failure
476

to
F.3d

show

good

at

cause.

1282.

See
“The

LeponeEleventh

Circuit ... has mandated that a district court examine
not only ‘good cause’ arguments but also whether ‘any
other circumstances warrant an extension of time based
on the facts of the case’ before denying an extension.”
Boyd, 2011 WL 6141064, at *2 (quoting Lepone-Dempsey,
476 F.3d at 1282).

Some of the factors potentially

justifying relief include whether the suit would be
barred by the statute of limitations even if the suit
were

to

be

dismissed

without

prejudice,

as

well

as

whether “the defendant is evading service or conceals a
defect in attempted service.”

Lepone-Dempsey, 476 F.3d

at 1282 (internal citations omitted).

These examples

are not exhaustive, and the court may consider other
factors.

See id.

7

III. DISCUSSION
Because the complaint was filed on June 23, 2014,
under Rule 4(m) Joe Hand Promotions had until October
21 (120 days after filing the complaint) to serve Koda
and Club BTS.
21,

the

Because Koda was not served by October

court

must

determine

whether

to

grant

an

extension of time for service.
Good

cause

Promotions

may

alleges

well

that

exist

Koda

is

here.

Joe

evading

service

making his whereabouts difficult to obtain.
Joe

Hand

Promotions

has

not

done

so

Hand
or

Although

explicitly,

it

could be argued that evading service would constitute
an “outside factor” that goes beyond mere negligence or
inadvertence on the part of the plaintiff, since the
acts

by

the

intentional.

defendant

to

note

such

a

case

would

be

However, Joe Hand Promotions’ motion does

not detail precisely
than

in

that,

how Koda evaded service, other
“Service

by

Certified

returned unexecuted as ‘unclaimed.’”

8

Mail

was

Pl.’s Mot. Extend

Time

to

Serve

(doc.

no.

9),

¶

2.

Moreover

and

notably, evasion of service is specifically enumerated
as a factor to consider when the court is to exercise
its

discretion,

rather

than

as

a

consideration

of

whether good cause exists. Lepone-Dempsey, 476 F.3d at
1282.

Nevertheless, the court need not resolve whether

Joe Hand Promotions has shown ‘good cause’ for failure
of service, for the court finds that the facts of the
case warrant that the court ‘exercise its discretion’
to grant the extension motion.
Several factors are at play.

First is Joe Hand

Promotions’ contention that Koda has evaded service.
The record before the court is exactly the kind of
record

one

would

expect

if

a

person

were

evading

service.

As previously noted, service by certified

mail

returned

was

successfully

and

unexecuted.

intentionally

If
evading

someone
service

were
or

ignoring the suit, his mailed summons would be returned
unexecuted, and he would not have filed any pleadings

9

on his own behalf or on behalf of his business entity
that was also sued.

Admittedly, while mere return of

service would not be enough to carry the day, there is
more.

There are also the allegations in the motion and

complaint

that

Koda

is

an

officer,

director,

shareholder, or otherwise a principal of Club BTS.

It

then follows that, because service has been perfected
on Club BTS, he is likely aware of this suit and is
thus evading service on himself personally.
Second, there is the fact that Joe Hand Promotions
filed its extension motion 11 days before the 120-day
time for service had run.

Had Joe Hand Promotions

waited until after the time for service had run, its
case

would

Promotions
attempt

to

have
timely
comply

been

weaker.

However,

filed

its

motion

with

the

Federal

in

a

Rules

Joe

Hand

good-faith
of

Civil

Procedure.
Third, the granting of the extension motion would
not result in unfair prejudice to Joe Hand Promotions.

10

Because

the

always

result

granting

of

granting
in

the

of

an

prejudice
motion

extension
to

that

a

motion

defendant

would

allow

a

would

(for
suit

the
to

continue when it might not otherwise), the issue is not
mere prejudice but rather unfair prejudice.

Because

this case is essentially on hold pending service on
Koda, Koda will not be caught off guard by the granting
of this motion.
Finally, there is the serious question whether the
statute of limitations would bar refiling this suit if
it were dismissed without prejudice.

When the

limitations statute may run in the interim between the
dismissal and the refiling of the suit, the Eleventh
Circuit has held that a district court may consider
that prejudice as a factor in determining whether to
grant

an

process.

extension

of

time

to

complete

service

of

See Lepone-Dempsey¸ 476 F.3d at 1282; see

also Fed. R. Civ. P. 4, cmt. C4-41.

11

Here, the question

whether the statute of limitations has run is not easy
to answer.
There is no statute of limitations provided under
either 47 U.S.C. § 553 or 47 U.S.C. § 605.

When a

federal statute fails to provide a limitations period
for a federal cause of action, courts “have generally
concluded that Congress intended that the courts apply
the most closely analogous statute of limitations under
state law.”
Rayonier,

United Paperworks Int'l Local # 395 v. ITT

Inc.,

931

F.2d

832,

834

(11th

Cir.

1991)

(quoting Reed v. United Transp. Union, 488 U.S. 319,
323 (1989)).

This court has found no case that uses

this method to determine “the most closely analogous
statute of limitations under state law” to the statutes
at issue here: 47 U.S.C. §§ 553 and 605.

This case may

be most analogous to a conversion claim under Alabama
law, which would be subject to a six-year statute of
limitations. See 1975 Ala. Code § 6–2–34(3).

However,

the court would not want to decide this issue without

12

adequate briefing.

In any event, the fact that there

is a serious question that the refiling of this case
‘might be’ time-barred is sufficient to counsel against
its dismissal, even without prejudice.

***

For

the

foregoing

reasons,

it

is

ORDERED

that

plaintiff Joe Hand Promotions, Inc.’s motion to extend
time to serve defendant for 90 days (doc. no. 9) is
granted and that plaintiff Joe Hand Promotions, Inc.
has until January 19, 2015, to serve defendant Steven
Hiro Koda.
DONE, this the 31st day of December, 2014.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE