Joe Hand Promotions, Inc. v. Koda et al
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., )
STEVEN HIRO KODA and CLUB )
BTS, LLC d/b/a Club BTS,
CIVIL ACTION NO.
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.
The other creates a private right of
action for an aggrieved party against third parties who
See 28 U.S.C. § 1331; 47
U.S.C. § 553(c)(1); 47 U.S.C. § 605(e)(3)(A).
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.
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
47 U.S.C. § 605.
Joe Hand Promotions
alleges in its complaint that it is unable to
determine, without discovery, which provision was
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
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
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
Promotions alleges that, “despite due diligence,” it
has not been able to complete service on Koda.
asserts that a denial of an extension of time to serve
Koda would result in a miscarriage of justice because
difficult to obtain and/or evading service.”
Mot. Extend Time to Serve (doc. no. 9), ¶ 6.
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
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
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:
“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
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.).
extension of time for service.
On one hand,
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
The Eleventh Circuit Court of Appeals has
outside factor[,] such as reliance on faulty advice,
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
Horenkamp, 402 F.3d at 1132, n. 2).
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.’”
Dale, No. 3:12cv393-MHT, 2012 WL 6725647, at *1 (M. D.
Ala. Dec. 27, 2012) (Thompson, J.) (quoting Durgin v.
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
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
whether “the defendant is evading service or conceals a
defect in attempted service.”
Lepone-Dempsey, 476 F.3d
at 1282 (internal citations omitted).
are not exhaustive, and the court may consider other
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.
Because Koda was not served by October
extension of time for service.
making his whereabouts difficult to obtain.
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
However, Joe Hand Promotions’ motion does
not detail precisely
how Koda evaded service, other
returned unexecuted as ‘unclaimed.’”
Pl.’s Mot. Extend
notably, evasion of service is specifically enumerated
as a factor to consider when the court is to exercise
whether good cause exists. Lepone-Dempsey, 476 F.3d at
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
As previously noted, service by certified
ignoring the suit, his mailed summons would be returned
unexecuted, and he would not have filed any pleadings
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
There are also the allegations in the motion and
shareholder, or otherwise a principal of Club BTS.
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
Third, the granting of the extension motion would
not result in unfair prejudice to Joe Hand Promotions.
continue when it might not otherwise), the issue is not
mere prejudice but rather unfair prejudice.
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.
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
See Lepone-Dempsey¸ 476 F.3d at 1282; see
also Fed. R. Civ. P. 4, cmt. C4-41.
Here, the question
whether the statute of limitations has run is not easy
There is no statute of limitations provided under
either 47 U.S.C. § 553 or 47 U.S.C. § 605.
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
United Paperworks Int'l Local # 395 v. ITT
(quoting Reed v. United Transp. Union, 488 U.S. 319,
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).
the court would not want to decide this issue without
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.
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
DONE, this the 31st day of December, 2014.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE
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