Lancaster et al v. Bottle Club, LLC et al

Filing 80

ORDER: Defendant Eyes Wide Shut, LLC's Motion to Quash Service of Process (Doc. # 69 ) is DENIED. Eyes Wide Shut's answer to the Amended Complaint is due by November 14, 2017. Signed by Judge Virginia M. Hernandez Covington on 10/31/2017. (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 Eyes Wide Shut, LLC’s Motion to Quash Service of
Process (Doc. # 69), filed on October 16, 2017. Plaintiffs
responded on October 30, 2017. (Doc. # 78). For the reasons
that follow, the Court denies the Motion and directs Eyes

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Wide Shut to respond to the Amended Complaint by November 14,
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). After
Plaintiffs attempted service on Eyes Wide Shut, Eyes Wide
Shut filed a motion to quash service on July 18, 2017. (Doc.
# 48). The Court granted that motion as unopposed on August
2, 2017. (Doc. # 51).
On August 14, 2017, counsel for Eyes Wide Shut declined
to accept service of process on Eyes Wide Shut’s behalf and
informed

Plaintiffs

that

Defendant

Susan

Harrow,

the

registered agent and managing member of Eyes Wide Shut, was
out of the country. (Doc. # 78 at 2). For that reason,
Plaintiffs procured an alias summons from the Clerk on August
31, 2017. (Doc. # 60). Subsequently, on October 4, 2017,
Plaintiffs filed a return of service document, indicating
that a process server had effected service of process on an
unnamed employee of Eyes Wide Shut on September 23, 2017.
(Doc. # 64).

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But, on October 16, 2017, Eyes Wide Shut filed the
instant Motion to Quash Service of Process pursuant to Rule
12(b)(5), Fed. R. Civ. P. (Doc. # 69). Eyes Wide Shut argues
that service was not properly effected under Fed. R. Civ. P.
4(h)(1)

because

the

party

that

accepted

service

was

an

employee of a different entity. (Id. at 2). In response,
Plaintiffs argue that the Motion should be denied because
Eyes Wide Shut has been evading service of process and has
actual notice of the case. (Doc. # 78 at 3).
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)).
Eyes Wide Shut claims Plaintiffs’ service of process was
invalid because Plaintiffs served an unknown employee, later
determined to be Catherine Coleman, at 8504 Adamo Drive, Suite
150. (Doc. # 69 at 1). But, Eyes Wide Shut is located at 8504
Adamo

Drive,

Suite

155

and

Catherine

Coleman

is

not

an

employee of Eyes Wide Shut. (Id.). Rather, as she explains in
her

affidavit,

Ms.

Coleman

is

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employed

by

Progressive

Employee Leasing Company through Defendant Bottle Club, LLC.
(Doc. # 69-1 at 2). Because an employee of a different entity
was served at a different address, Eyes Wide Shut argues it
was improperly served and service should be quashed.
First, Plaintiffs argue that they served Eyes Wide Shut
at the correct address. Although Eyes Wide Shut’s official
location is Suite 155 rather than 150, those Suites are
adjacent to each other and “the doors to both Suite Number
150 and Suite Number 155 open to the same location, with the
sign on Suite Number 155[‘s] door pointing to enter through
Suite Number 150.” (Doc. # 78 at 3; Doc. # 78-1). Thus, the
fact that the process server identified the address for
service as Suite 150, rather than Suite 155, has no practical
significance.
The process server’s affidavit of service states that
the female employee served “verified she was an employee,”
but the affidavit does not specify the entity for which she
is an employee. (Doc. # 64). Given Ms. Coleman’s affidavit,
this vague allegation does not establish that Plaintiffs
served an employee of Eyes Wide Shut. Still, the affidavit
further states the process server “was unable to serve Andrew
or Susan Harrow at this address” and that “Defendants avoid
service and have refused to accept service from the process

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server.” (Id.). Plaintiffs argue that the process server’s
affidavit shows that Eyes Wide Shut is evading service.
In support, Plaintiffs cite another affidavit of service
regarding the process server’s attempt to serve Defendant
BYOB Club, Inc., whose registered agent is Defendant Andrew
Harrow. (Doc. # 78 at 3; Doc. # 65-2). There, the process
server swore that Susan Harrow, who is the registered agent
and managing member of Eyes Wide Shut, said that “they will
not be excepting [sic] any lawsuit,” “they will not be opening
a door for anyone,” and “she is not excepting [sic] any
paperwork

on

a

frivolous

lawsuit.”

(Doc.

#

65-2).

And

Plaintiffs are correct that the various Defendants have filed
numerous motions to quash service — eight in total. (Doc. ##
15-19, 48, 62, 69). According to Plaintiffs, the numerous
motions to quash combined with the affidavits of service
reporting Defendants’ behavior prove that Eyes Wide Shut is
evading service in order to frustrate the prosecution of this
case. (Doc. # 78 at 7).
As the Court previously warned Defendants, 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 and who intentionally evades service.” (Doc. # 72 at
7-8)(quoting Nappi v. Welcom Products, Inc., No. 8:13-cv-

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3183-T-33TGW, 2014 WL 1418284, at *2 (M.D. Fla. Apr. 11,
2014)). Here, Eyes Wide Shut undoubtedly has notice of the
suit – it has filed two motions to quash and its registered
agent and managing member, Susan Harrow, is a defendant who
has

already

filed

an

answer.

Furthermore,

the

process

server’s affidavit attests that multiple good faith attempts
were made to serve various Defendants, but were foiled by
Defendants’ refusal to answer the door or accept any service
documents. (Doc. ## 64; 65-2). Most importantly, an affidavit
of service attests that Eyes Wide Shut’s registered agent,
Susan Harrow, stated her refusal to accept any service of
process, as she considers this lawsuit frivolous. (Doc. # 652). The Court finds that Eyes Wide Shut is evading service of
process.
Because
Complaint

and

Eyes
is

Wide

Shut

evading

has

service,

notice

of

the

Court

the

Amended

finds

that

Plaintiffs’ service on Eyes Wide Shut is sufficient to confer
jurisdiction. See Banco Latino, S.A.C.A. v. Gomez Lopez, 53
F. Supp. 2d 1273, 1281 (S.D. Fla. 1999)(“Notice of a complaint
coupled with good faith attempted service is sufficient to
confer jurisdiction where a party is evading service of
process.”). As another court has explained,

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Where it is evident that Plaintiffs have tried to
comply with every available means to provide
Defendant with notice, that Defendant does have
actual notice of suit, and that Defendant has been
evading service, it seems futile to require
Plaintiffs to expend countless additional resources
in order to effect service upon Defendants.
Chamberlain v. Integraclick, Inc., No. 4:10-CV-00477-SPM,
2011 WL 1456878, at *4 (N.D. Fla. Apr. 15, 2011)(denying
motion to quash technically defective service of process on
plaintiff’s attorney). Therefore, the Motion is denied and
Eyes Wide Shut is directed to respond to the Amended Complaint
by November 14, 2017
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Eyes Wide Shut, LLC’s Motion to Quash Service
of Process (Doc. # 69) is DENIED.

(2)

Eyes Wide Shut’s answer to the Amended Complaint is due
by November 14, 2017.
DONE and ORDERED in Chambers, in Tampa, Florida, this

31st day of October, 2017.

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