Safari Ltd. v. COLLECTA INTERNATIONAL LIMITED et al

Filing 35

ORDER GRANTING DEFENDANT'S MOTION TO QUASH SERVICE OF PROCESS AND DISMISS FOR INSUFFICIENT SERVICE OF PROCESS granting 20 Motion to Quash; granting 20 Motion to Dismiss for Lack of Jurisdiction. Closing Case. Motions Terminated: [19 ] Final MOTION for Default Judgment and Incorporated Memorandum of Law filed by Safari Programs, Inc., 20 Defendant's MOTION to Quash Service of Process MOTION to Dismiss for Lack of Jurisdiction 1 Complaint, 7 Calend ar Entry filed by Quercia, Inc., 18 MOTION to Strike 17 Response/Reply (Other), filed by Safari Programs, Inc.. Signed by Judge Marcia G. Cooke on 8/8/2016. (tm) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:15-cv-22132-COOKE
SAFARI PROGRAMS, INC., d/b/a
Safari Ltd.,
Plaintiff,
vs.
QUERCIA, INC., a Florida Corporation,
d/b/a IQON,
Defendant.
__________________________________________/
ORDER GRANTING DEFENDANT’S MOTION TO QUASH SERVICE OF
PROCESS AND DISMISS FOR INSUFFICIENT SERVICE OF PROCESS
Plaintiff Safari Programs, Inc. (“Plaintiff” or “Safari”) brings this case against
Defendant, Quercia, Inc. (“Defendant” or “Quercia”), seeking damages and injunctive relief
under the Lanham Act, 15 U.S.C. § 1125, and under Florida law arising from Quercia’s
alleged use of false and misleading advertising. Before me is Quercia’s Motion to Quash
Service of Process and Dismiss for Insufficient Service of Process (“Motion”) (ECF No. 20).
I have reviewed the Motion, the record, and the relevant legal authorities. For the reasons
below, Quercia’s Motion is granted.
I.

BACKGROUND

Safari, a toy animal figurine business, dismissed David Quercia in 2011 for poor
performance and acts of dishonesty. David Quercia then founded Quercia, a direct
competitor of Safari. Later, Rebecca Garcia (“Garcia”) and Elizabeth Duverger
(“Duverger”) resigned as sales employees of Safari to work for Quercia. Safari contends that
David Quercia, Garcia, and Duverger breached the confidentiality agreements they had
with Safari by transferring proprietary information and trade secrets from Safari’s database,
using them to gain an unfair advantage for Quercia over Safari. Safari also alleges that
Quercia disseminated false and misleading advertisements to the public on its website, and
printed materials that have unfairly harmed Safari’s business.

The Florida Secretary of State lists Quercia’s principal place of business as 3111
North Ocean Drive #806, Hollywood, Florida 33019. But according to Safari, Quercia has
vacated that address. It believes that Quercia is concealing its whereabouts from the public,
as displayed by the lack of contact information on Quercia’s website at the time of filing, as
well as Safari’s failed attempts to locate an alternative address through a private
investigator’s skip trace. As such, Safari asserts that substitute service on the Florida
Secretary of State is warranted under Florida law. After unsuccessful attempts to serve
Quercia, Safari transmitted the Summons and Complaint to the Florida Secretary of State
for substitute service under Fla. Stat. § 48.181 on August 4, 2015. See ECF No. 17-4 at 4.
II.

LEGAL STANDARDS

To serve a corporation, a party may “deliver[] 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,” Fed. R. Civ. P. 4(h)(1)(B), or, relevant
here, “follow[] 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.” Id.
4(e)(1).
Section 48.181 of the Florida Statutes permits a party to effectuate substitute service
on a corporation through the Florida Secretary of State “in limited circumstances.” Taverna
Opa Trademark Corp. v. Ismail, No. 08-20776-CIV, 2009 WL 1220513, at *1 (S.D. Fla. 2009).
To perfect substitute service under Fla. Stat. § 48.181, “the plaintiff must allege in the
complaint the jurisdictional basis for invoking the statute.” Id. Florida’s substitute service
statute may apply to a corporation that “conducts business in Florida and is . . . a resident of
Florida concealing [its] whereabouts.” Id.; see also § 41.181. Since “the lack of personal
service of process implicates due process concerns, the plaintiff must strictly comply with
the statutory requirements.” Verizon Trademark Servs., LLC v. Producers, Inc., No. 8:10-CV665-T-33EAJ, 2011 WL 3296812, at *4 (M.D. Fla. 2011) (quoting Smith v. Leaman, 826
So.2d 1077, 1078 (Fla. 2nd DCA 2002)).
A plaintiff must “show by affidavit or otherwise that sufficient search and inquiry
was actually made to ascertain that the defendant was concealing his whereabouts.” Bird v.
Int'l Graphics, Inc., 362 So.2d 316, 317 (Fla. 3d DCA 1978). In order to justify the use of
substituted service, a court does not examine “whether it was in fact possible to effect
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personal service in a given case, but whether the [plaintiff] reasonably employed knowledge
at [its] command, made diligent inquiry, and exerted an honest and conscientious effort
appropriate to the circumstances, to acquire the information necessary to enable [it] to effect
personal service on the defendant.” Grammer v. Grammer, 80 So. 2d 457, 460 – 61 (Fla.
1955). Thus, “the plaintiff must demonstrate the exercise of due diligence in attempting to
locate the defendant.” Wiggam v. Bamford, 562 So. 2d 389, 391 (Fla. 4th DCA 1990).
Notably, “failure to utilize obvious and available leads to locate the defendant is fatal to a
finding of due diligence.” Knabb v. Morris, 492 So.2d 839, 841 (Fla. 5th DCA 1986) (holding
due diligence not met because of plaintiff’s failure to follow obvious leads, despite plaintiff
hiring an investigator who attempted service at three different addresses, checked the
telephone directory, the postal service, and several utility companies).
III.

DISCUSSION

Safari contends it served Quercia by means of substitute service under Fla. Stat. §
48.181 because Quercia failed to maintain an office for its registered agent to receive service
of process in violation of Florida law. See Fla. Stat. § 48.091. Further, Safari alleges it has
exercised due diligence in ascertaining Quercia’s whereabouts. It outlines the steps it took to
locate a viable address for Quercia:
(1) An unsuccessful attempt at service on what the Florida Secretary of State lists as
Quercia’s principal place of business.
(2) After a private investigator’s skip tracing, an unsuccessful attempt at service on an
address registered to a personalized Florida license tag, “QUERCIA,” registered to
Quercia principal David Quercia. The individual who owned and occupied the unit
represented there had never been anyone named Quercia residing at the address.
(3) Communications with the attorney who represents Quercia in a related state court
matter, inquiring whether he could accept service on Quercia’s behalf. The attorney
represented he could not accept service.
These efforts, however, do not reach the level of due diligence required before
substitute service is supported under Florida law. At bottom, Plaintiff did not follow the
obvious and available leads of inquiring with Defendant’s attorneys about their client’s
possible location. Similarly, in Wiggam v. Bamford, 562 So. 2d 389, 391 (Fla. 4th DCA 1990),
the state court held the efforts of the appellees did not amount to due diligence even after (1)
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an unsuccessful attempt at service by the sheriff’s department at the defendant’s address, (2)
a check of the local telephone book, (3) a check at the U.S. postal office for a forwarding or
new address, (4) multiple telephone calls to local directory assistance, and (5) an
unsuccessful attempt at service by an investigation agency. Wiggam, 562 So. 2d at 391.
These actions did not meet the level of due diligence required since the appellees failed to
follow “an obvious lead to the appellant’s whereabouts [as] [t]hey failed to make inquiry of
her attorney.” Id.; see also Torelli v. Travelers Indem. Co., 495 So.2d 837 (Fla. 3d DCA 1986)
(“The plaintiff did not exercise due diligence in attempting to locate the defendant where he
failed to make inquiry of the defendant’s known attorney as to his client’s whereabouts. The
failure to follow such an obvious lead compelled the conclusion that the plaintiff had not
exercised due diligence.”).
Here, there is no evidence that Safari’s attorneys inquired into Quercia’s business
address with at least two of Quercia’s attorneys. Safari’s attorney, Tom Manos (“Manos”),
contacted Quercia’s state court attorney, Jared Gamberg (Gamberg”), about service issues
in May 2015. But according to Gamberg’s affidavit, Manos did not ask him for an address
or contact information for Quercia, nor did Gamberg state that he could not provide that
information. See ECF 17-5 at 1 – 2. Further, Manos and Quercia’s attorney in the present
action, Edward Polk (“Polk”), were in communication via email and phone conversations
regarding this action as early as July 2015. See ECF No. 17-4 at 1. Safari did not serve the
Florida Secretary of State until August 4, 2015, weeks after the parties’ communications.
There was ample time, then, for Manos to ask Polk where to serve Quercia in their prior
communications. Because Safari failed to ask Gamberg and Polk these basic questions
during its talks with each—in particular, where to serve Quercia, or whether either could
provide a business address for Quercia or contact information for someone with
knowledge—Safari failed to follow obvious and available leads on Quercia’s whereabouts.
Thus, I find Safari has not exercised due diligence in attempting to locate Quercia.
Defendant’s Motion is granted.1

1
It is unnecessary to address Defendant’s timing and relation-back arguments concerning
Plaintiff’s First Amended Complaint since I grant this Motion on insufficient process
grounds.
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IV.

CONCLUSION

Accordingly, it is ORDERED and ADJUDGED that Quercia’s Motion to Quash
Service of Process and Dismiss for Insufficient Service of Process (ECF No. 20) is
GRANTED. Plaintiff’s First Amended Complaint (ECF No. 21) is DISMISSED without
prejudice. The Clerk shall CLOSE this case. All pending motions, if any, are DENIED as
moot.
DONE and ORDERED in chambers, at Miami, Florida, this 8th day of August 2016.

Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record

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