J & J Sports Productions, Inc. v. Magat

Filing 22

ORDER DENYING MOTION TO QUASH SERVICE OF SUMMONS by Judge William Alsup [denying 13 Motion to Quash]. (whasec, COURT STAFF) (Filed on 7/8/2011)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
J & J SPORTS PRODUCTIONS, INC.,

11
For the Northern District of California

United States District Court

10

Plaintiff,

12
13
14
15
16
17
18
19
20
21

No. C 11-01149 WHA

v.
NARCISO MAGAT, individually and d/b/a
MAGATS ASIAN GROCERY & TRADING
a/k/a MAGAT ASIAN GROCERIES,

ORDER DENYING MOTION
TO QUASH SERVICE
OF SUMMONS

Defendant.
/
INTRODUCTION
In this telecast-interception action, defendant moves to quash service of the summons.
Because service was proper, this order denies defendant’s motion.
STATEMENT
The complaint alleges the following. Plaintiff J & J Sports Productions, Inc., is a

22

California company. It owned the exclusive nationwide television distribution rights to “The

23

Event”: Manny Pacquiao v. Joshua Clottey WBO Welterweight Championship Fight Program,

24

which was telecast nationwide on March 13, 2010. Defendant Narciso Magat owns Magats Asian

25

Grocery & Trading, also known as Magat Asian Groceries, located in Union City, California.

26

Defendant allegedly intercepted the March 13 telecast and showed it at his establishment without

27

entering into a sub-licensing agreement with plaintiff (Compl. ¶¶ 6–12).

28

1

Plaintiff filed this action for unlawful interception against defendant on March 10, 2011

2

(Dkt. No. 1). After three failed attempts to serve defendant personally, plaintiff served defendant

3

by substituted service on May 3, 2011. An individual named Renardo accepted service as the

4

person in charge at defendant’s commercial establishment (Dkt. No. 12).

5

Defendant filed the instant motion on May 31 but did not notice a date for the motion to

6

be heard. A briefing schedule was set, giving plaintiff until June 16 to file an opposition brief

7

and giving defendant until June 30 to file a reply brief (Dkt. No. 14). Plaintiff timely filed an

8

opposition brief (Dkt. No. 15). It subsequently came to the Court’s attention, however, that the

9

order setting the briefing schedule was not served on defendant. The deadline for defendant’s
reply was extended to July 7, and both scheduling orders were served on defendant (Dkt. No. 17).

11
For the Northern District of California

United States District Court

10

Even with the extension, defendant did not timely file a reply brief.

12
13

ANALYSIS
Defendant moves to quash service of the summons pursuant to Section 418.10 of the

14

California Code of Civil Procedure. Defendant asserts that he was the proper agent for service

15

and that he was not properly served (Dkt. No. 13). Plaintiff opposes the motion on the bases

16

that defendant was properly served and that defendant did not meet his initial burden to provide

17

arguments or authority in support of his motion (Opp. 2–5).

18

Under FRCP 4(e)(1), an individual may be served according to the state’s

19

service-of-process provision. Accordingly, Section 415.20(e) of the California Code of

20

Civil Procedure is applicable in the instant action. It provides:

21
22
23

If a copy of the summons and complaint cannot with reasonable
diligence be personally delivered to the person to be served . . .
summons may be served by leaving a copy . . . [at the] usual place
of business . . . in the presence of a competent member of the
household or a person apparently in charge of [defendant’s] office.

24

Plaintiff properly served defendant pursuant to this statute. Plaintiff attempted three times

25

to serve defendant personally at his place of business. After those unsuccessful attempts, plaintiff

26

left a copy of the summons and complaint with Renardo, who was the person apparently in charge

27

at defendant’s business establishment (Dkt. No. 12). This use of substituted service was proper.

28
2

1

Accordingly, the motion to quash service as improper is DENIED. Plaintiff’s argument

2

concerning the adequacy of defendant’s support for his motion need not be discussed.

3
4

CONCLUSION
For the reasons above, defendant’s motion to quash service of the summons is DENIED.

5
6

IT IS SO ORDERED.

7
8

Dated: July 8, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3