Verizon Trademark Services LLC et al v. The Producers, Inc. et al
Filing
162
ORDER denying 90 Sigmund J. Solares's Motion to Dismiss for Insufficient Service of Process. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 8/2/2011. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
VERIZON TRADEMARK SERVICES, LLC
and VERIZON LICENSING COMPANY,
Plaintiffs,
v.
Case No. 8:10-cv-665-T-33EAJ
THE PRODUCERS, INC.; INTERCOSMOS
MEDIA GROUP, INC., d/b/a DIRECTNIC.COM;
DIRECTNIC, LLC; DIRECTNIC, LTD;
DOMAIN CONTENDER, LLC; SIGMUND J.
SOLARES; MICHAEL H. GARDNER;
NOAH S. LIESKE; and DOES 1-10,
Defendants.
_____________________________________________/
ORDER
This cause comes before the Court pursuant to Sigmund J.
Solares’s
Motion
to
Dismiss
for
Insufficient
Service
of
Process or to Quash Service of Process (Doc. # 90), which was
filed on November 9, 2010.
Solares filed a declaration in
support of the Motion on November 10, 2010. (Doc. # 94).
Verizon Trademark Services, LLC and Verizon Licensing Company
(collectively “Verizon”) filed a Response in Opposition to the
Motion (Doc. # 101) as well as supporting declarations (Doc.
# 102) on November 23, 2010. Solares filed a Reply Memorandum
(Doc. # 125), with leave of Court, on February 2, 2011, and
also filed supplemental declarations. (Doc. # # 126, 127).
For the reasons that follow, the Court denies the Motion.
I.
Background and Procedural History
Verizon initiated this cybersquatting action pursuant to
15 U.S.C. § 1125(d) against Defendants by filing a complaint
on March 19, 2010. (Doc. # 10).
On August 17, 2010, the Court
issued an Order to Show Cause directing Verizon to explain why
the case should not be dismissed as to Solares because the
docket reflected that Solares had not been served with process
pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
(Doc. # 52).
In response to the Court’s Order to Show Cause, Verizon
filed detailed declarations describing the many and varied
attempts at service of process made concerning Solares. (Doc.
# 53).
On August 24, 2010, the Court granted Verizon an
extension of time until and including September 24, 2010, to
effectuate service upon Solares. (Doc. # 54).
On September
23, 2010, the Court entered an Order granting a further
extension of time to effect service upon Solares–-until and
including October 22, 2010. (Doc. # 64).
The Court held a
status conference on October 4, 2010, in which counsel for
Verizon described the difficulties experienced with respect to
serving
Solares.
(Doc.
#
67,
88).
During
the
status
conference, the Court authorized Verizon to file an amended
complaint to cure Verizon’s failure to serve Solares.
2
Verizon filed an amended complaint on October 7, 2010.
(Doc. # 68).
Therein, Verizon alleged that substituted
service pursuant to Florida Statute Section 48.161 is proper.
Id.
The amended complaint is 245 pages, including exhibits,
and contains the following allegations concerning Verizon’s
attempts to effect service of process upon Solares:
Plaintiffs are informed and believe, and on that
basis allege, that Defendant Sigmund J. Solares is
an individual residing in Tampa, Florida.
Plaintiffs have made several attempts to serve the
original complaint on Solares at his residence in
Tampa, Florida, for which he claims a homestead
exemption, as well as locations in Louisiana where
Solares does business.
Plaintiffs also mailed a
Notice of Lawsuit and Request to Waive[] Service of
Summons to Solares at his Tampa residence, but
Solares failed to sign or return the waiver.
Despite numerous attempts to serve process of the
original complaint on Solares, Plaintiff have been
unable to serve Solares because Solares is
concealing his whereabouts and evading service.
This Court has personal jurisdiction over Solares
because he resides and maintains a homestead
residence in Florida, and appears to be evading
service.
Consequently, substituted service is
appropriate under Section 48.161, Florida Statutes.
(Doc. # 68 at 4-5, ¶¶ 19-20).
Verizon effected service on the Secretary of State on
October 8, 2010. (Doc. # 72).
On October 13, 2010, Verizon
sent the service package via certified mail, return receipt
requested, to Solares’s residence at 3618 West Horatio Street,
Tampa, Florida 33609. (Doc. # 79 at 2, ¶ 12).
3
The United
States
Postal
Service
confirmed
the
delivery
attempt
on
October 15, 2010, at the Tampa, Florida home, but because
Solares did not sign for the service package, a pink-colored
slip was placed in the mail box, and the certified mail was
returned to the Post Office.
On October 28, 2010, Verizon’s
counsel filed an Affidavit of Compliance with Section 48.161,
Florida Statutes, for substituted service. (Doc. # 79).
service
package
was
returned
to
counsel
for
Verizon
The
on
November 3, 2010, as “unclaimed.” (Doc. # 101 at 21).
Solares responded to the amended complaint by seeking to
be dismissed from this action arguing that he has not been
served with process and arguing that substituted service
pursuant to Florida Statute Section 48.161 is not appropriate.
(Doc. # 90). Solares filed an amended declaration on February
2,
2011,
outlining
whereabouts:
the
following
facts
concerning
his
He owns a home located in Tampa, Florida and
since July 2009, his “business and personal affairs have
caused [him] to travel extensively throughout the world.
For
this reason, [he has] been in Tampa, Florida for only brief
periods since that time.” (Doc. # 94 at ¶¶ 1-4). In addition,
Solares operates a company based in Grand Caymen, Caymen
Islands. Id. at ¶ 5.
Solares indicates:
I did not receive the Notice of Lawsuit and Request
4
to Waive Service of Summons that the Plaintiffs
assert was delivered to the Tampa House. I have
not received, nor have I rejected delivery of, the
Summons and Amended Complaint that the Plaintiffs
assert they mailed, by certified mail, to me at the
Tampa House on October 13, 2010. I have never asked
any of my neighbors at the Tampa House to pick up
mail from the Tampa House.
Id. at ¶¶ 7-9.
In
response,
Verizon
filed
the
declarations
of
its
counsel and process servers, which describe the numerous
efforts made in an attempt to serve Solares.
Thomas E.
Santarlas, a process server, initially filed a declaration on
September 22, 2010 (Doc. # 63) indicating that, between March
24, 2010, and April 1, 2010, he “made a multitude of attempts
to serve Solares . . . but was unsuccessful in serving him.”
(Doc. # 63 at ¶ 2).
Santarlas attempted service again on
April 28, 2010, without success. Id. at ¶ 3.
From May 21,
2010, through June 7, 2010, Santarlas conducted surveillance
of Solares’s home in an ultimately unsuccessful attempt to
effect service of process. Id.
On November 11, 2010, Santarlas filed an additional
declaration
describing
further
unsuccessful
attempts
effectuate service of process on Solares. (Doc. # 102).
to
The
second Santarlas declaration describes additional surveillance
and service attempts on October 6, 2010, and November 12,
5
2010, and interviews with Solares’s neighbor. Id.
Solares’s
neighbor, Manuel Sanchez, filed a declaration indicating,
among other things:
Mr. Solares has not asked me to pick up any of his
mail. Without any request from Mr. Solares, I have
occasionally picked up his mail when I have noticed
that his mailbox is full. I did that voluntarily
as a concerned neighbor. I have not forwarded any
mail to Mr. Solares. Over the past few months, my
wife and I have been confronted by process servers
looking for Mr. Solares who did not provide to us
any business card. We do not know their names.
One process server came into an open door at my
home office without my permission.
He was not
invited inside.
While inside, he began looking
around and asking me intrusive questions. . . .
After I was confronted by the process server, I
returned to Mr. Solares’ mailbox the mail items
that I had voluntarily picked up.
(Doc. # 127-1 at ¶¶ 7-11).
On November 17, 2010, Santarlas received documents from
the United States Postal Service indicating that Solares
“still receives mail at address” (the Tampa, Florida home on
West Horatio Street). (Doc. # 102 at 11, ¶ 8; Doc. # 102 at
15).
Santarlas also received information from the United
States Postal Service that “there has not been a hold on mail
for the Solares Home in the past seven months; mail has been
delivered and someone is retrieving it from the mail box after
delivery, and there was no ‘forward order’ on file.” (Doc. #
102 at 11, ¶ 9).
6
At this juncture, the Court must determine if Verizon has
effected service on Solares via substituted service.
II.
Legal Standard
Federal Rule of Civil Procedure 4(e) allows a plaintiff
to serve a defendant within “a judicial district of the United
States by . . . following the state law for serving a summons
in an action brought in courts of general jurisdiction in the
state where the district court is located or where service is
made.”
Here, Verizon contends that it has served Solares
pursuant to Florida Statute Section 48.161 (the substituted
service statute), which states in part:
When authorized by law, substituted service of
process on . . . a person who conceals his or her
whereabouts by serving a public officer designated
by law shall be made by leaving a copy of the
process with a fee of $8.75 with the public officer
or in his or her office or by mailing the copies by
certified mail to the public officer with the fee.
The service is sufficient service on a defendant
who has appointed a public officer as his or her
agent for the service of process.
Notice of
service and a copy of the process shall be sent
forthwith by registered or certified mail by the
plaintiff or his or her attorney to the defendant,
and the defendant’s return receipt and the
affidavit of the plaintiff or his or her attorney
of compliance shall be filed on or before the
return day of the process or within such time as
the court allows.
In order to justify the use of substituted service, “The
test . . . is not whether it was in fact possible to effect
7
personal service in a given case, but whether the [plaintiff]
reasonably employed knowledge at [her] command, made diligent
inquiry, and exerted an honest and conscientious effort
appropriate to the circumstances, to acquire information
necessary to enable [her] to effect personal service on the
defendant.”
Delancy v. Tobias, 26 So. 3d. 77, 78 (Fla. 3d DCA
2010)(alteration in original; internal citation omitted).
A
number
of
courts
have
boiled
down
the
technical
requirements for substituted service as follows: “(1) the
plaintiff must send notice of service and a copy of the
process by registered or certified mail to the defendant; (2)
the plaintiff must file the defendant’s return receipt; and
(3) the plaintiff must file an affidavit of compliance.” See,
e.g., Smith v. Leaman, 826 So. 2d 1077, 1078 (Fla. 2nd DCA
2002).
“Because
the
lack
of
personal
service
of
process
implicates due process concerns, the plaintiff must strictly
comply with the statutory requirements.” Id.
The burden of
proof to sustain the validity of substituted service of
process rests upon the person seeking to invoke the provisions
of Section 48.161. Elmex Corp. v. Atlantic Fed. Sav. & Loan
Assoc., 325 So. 2d 58, 61 (Fla. 4th DCA 1976).
One seeking to
effect substituted service must present “facts which clearly
8
justify the applicability of the statute.” AB CTC v. Morejon,
324 So. 2d 625, 627 (Fla. 1975).
this
burden,
the
court
lacks
Unless the plaintiff meets
jurisdiction.
Shiffman
v.
Stumpff, 445 So. 2d 1104, 1105 (Fla. 4th DCA 1984)(collecting
cases).
Despite the requirement of strict compliance with the
statutory requirements, “the courts have created an exception
to the requirement that the plaintiff file the defendant’s
return receipt for those situations in which the defendant is
actively refusing or rejecting the substituted service of
process.” Smith, 826 So. 2d at 1078. As stated in Jennings v.
Montenegro, 792 So. 2d 1258, 1261 (Fla. 4th DCA 2001),
“Plaintiffs who use substituted service but fail to obtain a
return receipt . . . must allege that the defendant is
concealing his whereabouts, or that they had exercised due
diligence in attempting to locate him.” (Internal citations
omitted). “In other words, the failure of delivery of service
must be attributable to the defendant.” Id.
III. Analysis
Solares correctly indicates that “Service of process is
the responsibility of the plaintiff, not the defendant.” (Doc.
#
90
at
6).
However,
“A
defendant
who
beclouds
his
whereabouts should not be entitled to benefit from the process
9
server’s consequent confusion.” National Labor Relations Bd.
v. Clark, 468 F. 2d 459, 464 (5th Cir. 1972).1
Furthermore,
“The rules governing service of process are not designed to
create an obstacle course for Plaintiffs to navigate, or a
cat-and-mouse game for defendants who are otherwise subject to
the court’s jurisdiction.” TRW Inc. v. Derbyshire, 157 F.R.D.
59, 60 (D. Co. 1994).
With these parameters in mind, this Court must determine
whether Verizon’s use of substituted service, rather than
personal service, is apporpriate under the facts of this case.
If the answer to this inquiry is “yes” the Court must next
determine whether Verizon has complied with the requirements
of Florida’s substituted service statute.
A.
Is Substituted Service Appropriate?
As a threshold matter, the Court determines that the
circumstances presented warrant Verizon’s use of substituted
service. Based on the declarations of the process servers and
other material on file, the Court determines that Verizon’s
counsel “reasonably employed knowledge at [her] command, made
diligent inquiry, and exerted an honest and conscientious
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981), the Eleventh Circuit adopted all cases
decided by the Fifth Circuit Court of Appeals prior to the
close of business on September 30, 1981, as binding precedent.
10
effort
appropriate
to
the
circumstances,
to
acquire
information necessary to enable [her] to effect personal
service on the defendant.”
Delancy, 26 So. 3d. at 78.
In
Delancy, substituted service was deemed appropriate because,
inter alia, the plaintiff attempted to personally serve the
defendant over 20 times but was unsuccessful because the
defendant lived in a gated community.
Likewise, in Robb v. Picarelli, 319 So. 2d 645, 647 (Fla.
3d DCA 1975), the court determined that substituted service
was justified because the plaintiff established that the
defendant
was
concealing
his
whereabouts.
There,
the
plaintiff made numerous unsuccessful attempts to personally
serve the defendant, employed private detectives, and checked
with the Department of Motor Vehicles, the National Crime
Center and various police departments in an effort to find the
defendant’s last known address to no avail.
See also 818
Asset Mgmt. v. Neiman, 22 So. 3d 659, 661 (Fla. 3d DCA
2009)(concurring opinion)(denying motion to set aside default
judgment premised on insufficient service of process because
defendant, for a period spanning eight months, “did not claim
her mail while at home and made no arrangements whatsoever to
either have it forwarded or to otherwise obtain it.”).
In
this
case,
Verizon’s counsel directed numerous
11
attempts to effect service at Solares’s Tampa, Florida home
over several months.
When service was not accomplished,
Verizon’s counsel directed surveillance of Solares’s home
including interviews of the neighbors.
personally
serve
unsuccessful.2
were
conscientious
determined,
Solares
and
Verizon’s efforts to
diligent,
persistent,
appropriate,
albeit
Therefore, use of Florida substituted service
Statute, Section 48.161, is appropriate.
The record reflects that Verizon effected service on the
Secretary of State on October 8, 2010. (Doc. # 72).
On
October
to
13,
2010,
Verizon
sent
the
service
package
Solares’s Tampa, Florida home via certified mail, return
receipt requested.
Solares did not sign for the package.
On
October 28, 2010, Verizon’s counsel filed an Affidavit of
Compliance
with
Section
48.161,
substituted service. (Doc. # 79).
Florida
Statutes,
for
The service package was
returned to counsel for Verizon on November 3, 2010, as
“unclaimed.” (Doc. # 101 at 21). The Court must now determine
whether to excuse Verizon’s failure to obtain a signed receipt
2
Although the Court finds that Verizon’s attempts to
personally serve Solares were conscientious and appropriate,
the Court takes this opportunity to note that it does not
approve Verizon’s process server’s action of entering
Sanchez’s home (albeit through an open door) without first
asking Sanchez for permission.
12
for the service package.
B.
Is the Lack of a Return Receipt Excusable?
In Fernandez v. Chamberlain, 201 So. 2d 781, 786 (Fla.
2nd DCA 1967), the court noted, “When a resident conceals his
whereabouts, obviously it is impossible to serve him by mail
or otherwise.
When a defendant makes it impossible for the
plaintiff to serve him by mail or otherwise, the failure to
file defendant’s return receipt does not prevent this court
from acquiring jurisdiction.”
This Court determines that Verizon’s failure to obtain a
signed receipt for the service package under the circumstances
of this case does not render substituted service a nullity.
Under normal circumstances, a return receipt signed by the
defendant
is
a
fundamental
component
to
the
substituted
service statute. Here, however, Verizon has met its burden of
demonstrating
that
Solares
has
been
actively
evading,
rejecting, and avoiding service.
As aptly stated by Verizon, “With knowledge of this
action, Solares cannot be allowed to avoid personal and
substitute service of process by failing to retrieve his own
mail, by voluntarily remaining outside the jurisdiction of
this Court and by failing to provide relevant information
about
his
whereabouts
to
Plaintiffs
13
in
order
to
permit
personal service of the Amended Complaint.” (Doc. # 101 at
3).3
Solares contends that the Motion to Dismiss should be
granted because Verizon has failed to point to a single overt
act by Solares to conceal his whereabouts or reject service.
With
no
concrete
evidence
to
show
that
he
is
actively
rejecting service, Solares argues that the exception to the
requirement of a signed return receipt does not apply.
The
Court
and
has
disagrees.
carefully
considered
Solares’s
argument
Evaluation of the case law compels a result
different from Solares’s position.
Solares relies upon Turcotte v. Graves and its progeny-cases in which courts have determined that the plaintiff’s
failure to obtain a signed receipt for the service package to
be fatal.
However, each case is readily distinguished from
the present case.
In Turcotte v. Graves, 374 So. 2d 641, 643
(Fla. 4th DCA 1979), the court quashed substituted service
when certified mail sent to comply with section 48.161 was
returned with a note that the address was a vacant, burned
3
Solares has actual notice of this suit because he owns
or owned The Producers, Inc., Intercosmos Media Group, Inc.,
and Domain Contender, LLC. These entities are co-defendants
in this cause, have been served with process, and have
responded to the complaint.
14
down mobile home.
delivery
of
process
The court held that “the failure of
was
not
caused
by
the
defendant-
addressee’s rejection of the mail and where such failure might
have resulted from a cause not chargeable to the defendant,
then the statutory requirements have not been met and service
of process is insufficient.” See also Wyatt v. Haese, 649 So.
2d 905, 907 (Fla. 4th DCA 1995)(quashing substituted service
and holding that two attempts at service by mail, one marked
‘unclaimed’ and the other marked ‘not at this address,’ were
insufficient to establish that the defendant intentionally
failed or refused to claim the notices); Crews v. Rohlfing,
285 So. 2d 433 (Fla. 3d DCA 1973)(finding that mail returned
and marked “moved left no address” was insufficient to fall
within the exception to the statutory requirements).
The present case is factually different from the cases
cited above because it is not contested that Solares resides
at the home in Tampa, Florida on West Horatio Street. Solares
has declared a homestead exemption for the Tampa, Florida home
as his primary residence.
If Verizon had sent the service package to a burned down
mobile home as in Turcotte, or to the wrong address as in
Wyatt and Crews, this Court would not be justified in excusing
Verizon’s failure to obtain a signed receipt for the service
15
package. However, in this case, after diligent and exhaustive
attempts to personally serve Solares (at least twenty attempts
by this Court’s calculation), Verizon resorted to substituted
service and sent the service package to Solares’s correct
address.
The package was delivered to Solares’s home via
certified mail, but Solares did not sign for the package.
Verizon’s persistent attempts to serve Solares coupled
with Solares’s actual knowledge of the suit justify the
Court’s decision to excuse Verizon’s failure to obtain a
signed receipt for the service package.
Thus, finding that
Verizon effected service of process on Solares via substituted
service, the Court denies the Motion.
Accordingly, it is hereby
ORDERED, ADJUDGED and DECREED:
Sigmund J. Solares’s Motion to Dismiss for Insufficient
Service of Process or to Quash Service of Process (Doc. # 90)
is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this
2nd day of August, 2011.
Copies to:
All Counsel of Record
16
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