Lancaster et al v. Bottle Club, LLC et al
Filing
72
ORDER: Defendant BYOB Club, Inc.'s Motion to Quash Service of Process (Doc. # 62 ) is GRANTED. Plaintiffs must perfect service of process on BYOB Club by October 27, 2017. Signed by Judge Virginia M. Hernandez Covington on 10/20/2017. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMBER LANCASTER, BRITTANY
CRIPLIVER, BROOKE TAYLOR
JOHNSON, CIELO JEAN GIBSON,
CORA SKINNER, GEMMA LEE
FARRELL, HEATHER RAE YOUNG,
IRINA VORONINA, JESSE GOLDEN,
JESSA HINTON, JOANNA KRUPA,
KATARINA VAN DERHAM, MAYSA
QUY, PAOLA CANAS, SANDRA
VALENCIA, SARA UNDERWOOD,
TIFFANY SELBY, TIFFANY TOTH,
VIDA GUERRA, and KIM COZZENS,
Plaintiffs,
v.
Case No. 8:17-cv-634-T-33JSS
THE BOTTLE CLUB, LLC d/b/a
EYZ WIDE SHUT II; EYES WIDE
SHUT, LLC d/b/a EYZ WIDE SHUT;
BYOB CLUB, INC.; ANDREW
HARROW; and SUSAN HARROW,
Defendants.
/
ORDER
This cause comes before the Court in consideration of
Defendant BYOB Club, Inc.’s Motion to Quash Service of Process
(Doc. # 62), filed on September 22, 2017. Plaintiffs responded
on October 4, 2017. (Doc. # 65). For the reasons that follow,
1
the Court grants the Motion and extends the deadline to serve
BYOB Club to October 27, 2017.
I.
Background
On March 16, 2017, Plaintiffs filed their Complaint
alleging violations of the Lanham Act, 15 U.S.C. § 1125(a) et
seq., by Defendants. (Doc. # 1 at 8). Plaintiffs then filed
an Amended Complaint on June 6, 2017. (Doc. # 38). Plaintiffs
attempted service on BYOB Club numerous times between June
and August of 2017. (Doc. # 65-2).
Subsequently, on September 22, 2017, Plaintiffs filed a
return of service document, indicating that a process server
had effected service of process on an unnamed employee of
BYOB Club on September 1, 2017. (Doc. # 63). But, on September
22, 2017, BYOB Club filed a Motion to Quash Service of Process
pursuant to Rule 12(b)(5) of the Federal Rules of Civil
Procedure. (Doc. # 62). BYOB Club argues that Plaintiffs have
not established that service was properly effected under Fed.
R. Civ. P. 4(h)(1). (Id. at 1-2). In response, Plaintiffs
argue that service of process was properly executed pursuant
to Fla. Stat. § 48.081(3)(a), as permitted by Fed. R. Civ. P.
4(h)(1)(A). (Doc. # 65 at 5).
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II.
Analysis
“‛[W]hen service of process is challenged, the party on
whose behalf service is made has the burden of establishing
its validity.’” Andujar v. All Coast Transporters, Inc., No.
12-62091-CIV, 2013 WL 2404059, at *2 (S.D. Fla. May 31, 2013)
(quoting Familia de Boom v. Arose Mercantil, S.A., 629 F. 2d
1134, 1139 (5th Cir. 1980)). Here, because BYOB Club claims
Plaintiffs’ service of process was invalid, Plaintiffs must
show that they effected proper service on BYOB Club.
Federal Rule of Civil Procedure 4(e)(1) provides that an
individual can be served by “following 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 . . .” Fed. R. Civ. P. 4(e)(1). And
Rule 4(h)(1) states that a corporation in a judicial district
of the United States must be served either “in the manner
prescribed by Rule 4(e)(1) for serving an individual” or
(B) by delivering a copy of the summons and of the
complaint to an officer, a managing or general
agent, or any other agent authorized by appointment
or by law to receive service of process and — if
the agent is one authorized by statute and the
statute so requires — by also mailing a copy of
each to the defendant . . . .
Fed. R. Civ. P. 4(h)(1).
3
As
Plaintiffs
emphasize,
under
Florida
Statute
§
48.081(3)(a):
[P]rocess may be served on the agent designated by
the corporation under s. 48.091. However, if
service cannot be made on a registered agent
because of failure to comply with s. 48.091,
service of process shall be permitted on any
employee at the corporation’s principal place of
business or on any employee of the registered
agent.
Fla. Stat. § 48.081(3)(a). Furthermore, Florida Statute §
48.091(2) lays out requirements for designated agents to
accept service:
Every corporation shall keep the registered office
open from 10 a.m. to 12 noon each day except
Saturdays, Sundays, and legal holidays, and shall
keep one or more registered agents on whom process
may be served at the office during these hours.
The corporation shall keep a sign posted in the
office in some conspicuous place designating the
name of the corporation and the name of its
registered agent on whom process may be served.
Fla. Stat. § 48.091(2).
Thus, Plaintiffs insist that Fla. Stat. § 48.0831(3)(a)
“allows the service of process to be executed on any employee
at the corporation’s principal place of business when the
registered agent fails to comply with Fla. Stat. § 48.091.”
(Doc. # 65 at 5). The Court agrees. Plaintiffs may serve BYOB
Club pursuant to state law, as authorized by Fed. R. Civ. P.
4(e)(1), rather than in the manner prescribed by Fed. R. Civ.
4
P. 4(h)(1)(B). And, if BYOB Club has failed to comply with
Fla. Stat. § 48.091, than Plaintiffs may serve BYOB Club
pursuant to Fla. Stat. § 48.0831(3)(a).
Plaintiffs argue that they made “numerous attempts” to
serve Andrew Harrow, BYOB Club’s registered agent, at his
registered office at 105 US Hwy 301 South, Suite 110, Tampa,
FL 33619. (Doc. # 65 at 3). This includes an attempt to serve
Andrew Harrow on June 27, 2017 at 10:30 a.m., consistent with
Fla. Stat. § 48.091(2). (Id. at 3). But, because of these
numerous failed attempts, Plaintiffs attempted to serve BYOB
Club at it principal place of business located at 8504 Adamo
Drive, Suite 150, Tampa, FL 33619 in accordance with Fla.
Stat. § 48.0831(3)(a). (Id. at 4-5).
Still, service pursuant to Fla. Stat. § 48.0831(3)(a)
would only be proper if an actual employee of BYOB Club was
served at BYOB Club’s principal place of business. In its
Motion, BYOB Club states that “it does not have any physical
location.” (Doc. # 62 at 2). But, as Plaintiffs have shown,
BYOB Club’s principal place of business is listed as 8504
Adamo Drive, Suite 150, Tampa, FL 33619 on its 2017 Florida
Profit Corporation Annual Report. (Doc. # 65-3).
Next, BYOB Club argues that “the only person associated
with BYOB is the registered agent, Andrew Harrow.” (Doc. 62
5
at 2). “Further, the individual served was not an officer,
managing or general agent, employee of BYOB, employee of
BYOB’s registered agent, or any other agent authorized by
appointment or by law to receive service of process for BYOB.”
(Id.). BYOB Club claims “this individual was an employee of
an entirely different entity, and had no relationship with
[it].” (Id.).
In contrast, Plaintiffs assert that, while “the employee
did not provide her name to the process server, she did,
however, identify herself as an employee of BYOB Club, Inc.”
(Id. at 5). But, this is not supported by the process server’s
affidavit. The affidavit from September 1, 2017, states that:
Server spoke with female employee, she was a
cashier/person working the front desk. Server asked
if she was an employee and she stated yes. Server
asked for the owners of the business, female stated
owners were not available. Server advised employee
of the papers he was serving her. She refused her
name.
(Doc. # 63 at 1). The affidavit only establishes that the
woman identified herself as an employee of a business at that
location — not specifically as an employee of BYOB Club.
Furthermore, Plaintiffs’ Amended Complaint states that
multiple
Defendants
share
the
same
principal
place
of
business, including The Bottle Club, LLC, Eyes Wide Shut,
LLC, and BYOB Club. (Doc. # 38 at 6). It is true that BYOB
6
Club’s Motion does not clarify the identity of the individual
served or specify the entity for which that individual works.
Nevertheless, counsel for BYOB Club has asserted, under the
dictates of Fed. R. Civ. P. 11, that the woman served is not
an employee of BYOB Club. See Fed. R. Civ. P. 11(b) (stating
that, by presenting a pleading, written motion, or other paper
to the court, “an attorney or unrepresented party certifies
that to the best of the person’s knowledge, information, and
belief,
formed
circumstances”
after
the
an
legal
inquiry
and
reasonable
factual
under
the
contentions
are
warranted by existing law or have evidentiary support and
that the filing “is not being presented for any improper
purpose”).
Absent
contrary
evidence
provided
by
the
Plaintiffs, the Court accepts this assertion.
Because multiple entities share the same principal place
of
business,
the
unidentified
person
served
did
not
specifically state her employer, and BYOB Club insists the
person was not its employee, Plaintiffs have not met their
burden of establishing service was properly effected under
Fla. Stat. § 48.081(3)(a). Therefore, the Motion is granted.
Still, BYOB Club should note that the “Court will not
require a plaintiff to expend limitless resources in order to
effect service upon a defendant who has actual notice of suit
7
and
who
intentionally
evades
service.”
Nappi
v.
Welcom
Products, Inc., No. 8:13-cv-3183-T-33TGW, 2014 WL 1418284, at
*2 (M.D. Fla. Apr. 11, 2014); see also Banco Latino, S.A.C.A.
v.
Gomez
Lopez,
1999)(“Notice
53
of
a
F.
Supp.
complaint
2d
1273,
coupled
1281
with
(S.D.
good
Fla.
faith
attempted service is sufficient to confer jurisdiction where
a party is evading service of process.”); Sanderford v.
Prudential Ins. Co., 902 F. 2d 897, 900 (11th Cir. 1990)(“Rule
4, Fed. R. Civ. P., is a flexible rule that should be
liberally construed so long as a party receives sufficient
notice of the complaint.” (citation and internal quotation
marks omitted)).
As
mentioned
above,
Plaintiffs
have
made
numerous
attempts to serve BYOB Club. (Doc. # 65 at 3-4). Furthermore,
Plaintiffs represent that Susan Harrow, BYOB Club’s managing
member, told the process server that “‛they will not be
accepting any lawsuit,’ ‘they will not be opening the door
for
anyone,’
and
‘she
will
not
be
excepting
[sic]
any
paperwork on a frivolous lawsuit.’” (Id. at 4). Although the
Court is troubled by these statements, the Court will defer
its
determination
constitute
evasion
as
to
whether
of
service.
BYOB
But,
the
Club’s
actions
Court
strongly
encourages BYOB Club to accept service of process in good
8
faith. The Court finds it appropriate to grant Plaintiffs an
extension to October 27, 2017, to effect service of process
on BYOB Club.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendant BYOB Club, Inc.’s Motion to Quash Service of
Process (Doc. # 62) is GRANTED.
(2)
Plaintiffs must perfect service of process on BYOB Club
by October 27, 2017.
DONE and ORDERED in Chambers, in Tampa, Florida, this
20th day of October, 2017.
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