Joe Hand Promotions, Inc. v. Gonzales

Filing 17

ORDER Permitting Supplemental Briefing and/or Declarations re 13 signed by Magistrate Judge Gary S. Austin on 6/6/2014. (Martinez, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOE HAND PROMOTIONS, INC.

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No. 1:13-cv-01485 AWI-GSA

Plaintiff,
v.

ORDER PERMITTING SUPPLEMENTAL
BRIEFING AND/OR DECLARATIONS

JOSEPH ANTHONY GONZALES, a/k/a
JOE ANTHONY GONZALES,
individually and d/b/a BREAKTIME
BILLIARDS

(Doc. 13)

Defendants.

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On September 13, 2013, Plaintiff Joe Hand Promotions, Inc. (“Plaintiff”) filed a complaint
against Defendant Joseph Anthony Gonzales (a/k/a Joe Anthony Gonzales) (“Defendant”),

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individually and doing business as Breaktime Billiards, alleging, inter alia, violations of federal
telecommunications statutes. Doc. 1. Pending before the Court is Plaintiff’s motion for default

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judgment. Doc. 13. Plaintiff’s motion for default judgment states that “[n]either the Defendant

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nor anyone acting on Defendant’s behalf filed an Answer or any other responsive pleading to

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Plaintiff’s duly served complaint.” Doc. 13-1 at 2.

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Plaintiff has filed a proof of service of the summons and complaint on the Defendant.

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Doc. 5. The proof of service indicates that Defendant was served by means of substituted service

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at Breaktime Billiards, 304 McHenry Avenue, Modesto, CA 95354. See Docs. 5 at 1, 13-3 at 2.

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John Shackleford, a registered process server with Rezac Meyer Attorney Service, submitted a

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declaration with the proof of service. Doc. 5 at 3. Mr. Shackleford states that, in an effort to
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personally serve the Defendant, he went to Breaktime Billiards on November 20 and 21, 2013,

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but the business was closed. Doc. 5 at 3. He went to the business for a third time on November

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22, 2013, when he effected substituted service on Antonio Quejas—Person in Charge.” Doc. 5 at

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1, 4. He also mailed the papers to Breaktime Billiards on November 25, 2013. Doc. 5 at 4.

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Plaintiff appears to have attempted to serve Defendant at Breaktime Billiards because a
California Department of Alcoholic Beverage Control license (“liquor license”) lists Defendant as

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the primary owner of Breaktime Billiards. See Doc. 13-3 at 4. Indeed, Plaintiff’s complaint
asserts that Defendant “is the sole individual specifically identified on the California [Department

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of] Alcoholic Beverage Control license issued for Breaktime Billiards (ABC #481985).” Doc. 1

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at 3. The Court, however, has reservations about the sufficiency of service on Defendant at

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Breaktime Billiards solely on the basis of the liquor license issued to this establishment.

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The liquor license was issued on September 24, 2009 and expired on August 31, 2012.
See Doc. 13-3 at 4. The alleged illegal telecast underlying Plaintiff’s telecommunications piracy

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claims occurred on September 22, 2012. Doc. 1 at 4. The substituted service at issue took place

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over a year after that, on November 22, 2013. Doc. 5. Both the alleged illegal telecast and the

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substituted service took place after the liquor license identifying Defendant as the owner of

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Breaktime Billiards had expired. Indeed, the substituted service at issue here took place over a

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year after the liquor license had expired.

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Therefore, to the extent that Plaintiff maintains that the substituted service was made in

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accordance with Federal Rule of Civil Procedure 4(e)(1) and California Code of Civil Procedure
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§ 415.20(b), the Court is not satisfied that the information before it establishes that Defendant was

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the owner of Breaktime Billiards, and, in turn, that Breaktime Billiards was Defendant’s “usual

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place of business” for purposes of § 415.20(b), on November 22, 2013, when the substituted

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service was effected. See Cal. Code of Civ. P. § 415.20(b).
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The Court hereby permits Plaintiff to submit supplemental briefing and/or declarations to

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demonstrate that the substituted service at Breaktime Billiards was proper under Federal Rule of

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Civil Procedure 4(e). Any supplemental documentation shall be submitted no later than June 27,

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2014. Plaintiff is advised that failure to submit supplemental documentation will likely result in

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the denial of his pending motion for default judgment. The Court will re-set the hearing on
Plaintiff’s motion for default judgment or take the matter under submission, after reviewing any

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additional briefing and/or declarations submitted by Plaintiff.

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IT IS SO ORDERED.
Dated:

June 6, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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