Millennium Funding, Inc. et al v. 1701 Management, LLC. et al

Filing 166

ORDER ON DEFENDANT CHARLES MUSZYNSKI'S MOTION TO QUASH SERVICE OF PROCESS. Motion to Quash Service of Process, DE# 126 , is DENIED. Signed by Judge Beth Bloom on 11/17/2021. See attached document for full details. (ebz)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-20862-BLOOM/Otazo-Reyes
MILLENNIUM FUNDING, INC.,
a Nevada corporation, et al.,
Plaintiffs,
v.
1701 MANAGEMENT LLC d/b/a
LIQUIDVPN, a Puerto Rico limited
liability company, et al.,
Defendants.
____________________________________/
ORDER ON DEFENDANT CHARLES MUSZYNSKI’S
MOTION TO QUASH SERVICE OF PROCESS
THIS CAUSE is before the Court upon Defendant Charles Muszynski’s (“Defendant”)
Motion to Quash Service of Process and Incorporated Memorandum of Law, ECF No. [126]
(“Motion”). Plaintiffs Millennium Funding, Inc., Hunter Killer Productions, Inc., Voltage
Holdings, LLC, 211 Productions, Inc., AMBI Distribution Corp., After Productions, LLC, After
II Movie, LLC, Morgan Creek Productions, Inc., Eve Nevada, LLC, Bedeviled LLC, Millennium
Media, Inc., Colossal Movie Productions, LLC, Day of Dead Productions, Inc., YAR Productions,
Inc., FSMQ Film, LLC, FW Productions, LLC, I Am Wrath Production, Inc., Killing Link
Distribution, LLC, Badhouse Studios, LLC, LF2 Productions, Inc., LHF Productions, Inc., Venice
PI, LLC, Rambo V Productions, Inc., Rupture CAL, Inc., MON, LLC, SF Film, LLC, Speed Kills
Productions, Inc., Millennium IP, Inc., Nikola Productions, Inc., Wonder One, LLC, Bodyguard
Productions, Inc., Millennium SPVH, Inc., Outpost Productions, Inc., Definition Delaware LLC,
Hannibal Classics Inc., Justice Everywhere Productions LLC, State of the Union Distribution and

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Collections, LLC, Paradox Studios, LLC, Dallas Buyers Club, LLC, Screen Media Ventures, LLC
and 42 Ventures, LLC (collectively, “Plaintiffs”) filed a Response in Opposition, ECF No. [129]
(“Response”), to which Defendant filed a Reply, ECF No. [140] (“Reply”). The Court has carefully
reviewed the Motion, the record in this case, the applicable law, and is otherwise fully advised.
For the reasons set forth below, the Motion is denied.
I. BACKGROUND
Plaintiffs filed their initial complaint on March 3, 2021, seeking injunctive relief and
damages against Defendant, 1701 MANAGEMENT LLC d/b/a LIQUIDVPN (“1701”), and
DOES 1-100. See ECF No. [1]. On May 5, 2021, Plaintiffs filed their First Amended Complaint
(“FAC”) adding AUH2O LLC (“AUH2O”) and others as Defendants. See ECF No. [24]. On
August 17, 2021, Plaintiffs filed a Second Amended Complaint (“SAC”) adding VPNETWORKS,
LLC d/b/a TorGuard (“TorGuard”) as a Defendant. See ECF No. [96]. Plaintiffs assert claims of
direct copyright infringement, contributory copyright infringement by intentional inducement,
contributory copyright infringement based on material contribution, vicarious infringement,
violations of the Digital Millennium Copyright Act (“DMCA”), trademark infringement, federal
unfair trade competition, breach of contract, unjust enrichment, and breach of publicity rights. See
generally id.
According to the SAC, Defendant is the sole member of Defendants 1701 and AUH2O.
ECF No. [96] ¶¶ 75, 97. On March 15, 2021, 1701 was served a copy of the initial complaint and
summons. See ECF No. [9]. On April 23, 2021, after Janie Kessler (“Ms. Kessler”), a licensed
process server in Texas, determined that Defendant’s only known address was a private mailbox
at 204 Rainbow Dr. #10485, Livingston, Texas 77399, Ms. Kessler left a copy of the initial
complaint and summons with Meghan Murphy who was in charge of the mailbox. See ECF No.

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[21]. On May 6, 2021, Ms. Kessler left a copy of the FAC and summons with Geoff Rey who was
also in charge of the same mailbox. See ECF No. [34]. On May 25, 2021, 1701 was served a copy
of the FAC. See ECF No. [45]. On June 3, 2021, AUH2O was served a copy of the FAC. See ECF
No. [49].1 On August 17, 2021, 1701 and AUH2O were served a copy of the SAC. See ECF No.
[98].
Defendant argues that the service of process on him should be quashed because Plaintiffs
did not effectuate personal service on Defendant, Plaintiffs did not serve process to an agent
authorized by appointment or by law to receive process for Defendant, and Plaintiffs’ attempted
service fails under Texas law. ECF No. [126] at 7-8. Defendant’s Motion notably does not consider
whether service was proper under Florida law. See generally ECF No. [126]. Plaintiffs argue that
service of process was proper. Plaintiffs contend that Ms. Kessler delivered the documents to
persons in charge of Defendant’s mailbox in accordance with Florida law, Plaintiffs served
Defendant’s alter egos 1701 and AUH2O, or Defendant is a fugitive entitled to only limited access
to the courts under the fugitive disentitlement doctrine. See generally ECF No. [129].
II. LEGAL STANDARD
The Eleventh Circuit has determined that Rule 4 is “a flexible rule that should be liberally
construed so long as a party receives sufficient notice of the complaint.” Sanderford v. Prudential
Ins., 902 F. 2d 897, 900 (11th Cir. 1990) (quoting United Food & Commercial Workers Union v.
Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984)). Under Rule 4(e), an individual within a
judicial district of the United States, as opposed to an individual in a foreign country, may be
served by:

1

AUH2O was not a named defendant in the initial complaint and was not served the initial complaint. See
ECF No. [1].

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(1) 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; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual
personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode
with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law
to receive service of process.
Fed. R. Civ. P. 4(e).
When challenging service of process, the defendant “must describe with specificity how
the service of process failed to meet the procedural requirements of Federal Rule of Civil
Procedure 4.” Hollander v. Wolf, No. 09–80587–CIV, 2009 WL 3336012, at *3 (S.D. Fla. Oct. 14,
2009) (citing O’Brien v. R.J. O’Brien & Associates, Inc., 998 F.2d 1394, 1400 (7th Cir. 1993)).
“Once the defendant carries that burden, then the burden shifts to the plaintiff to prove a prima
facie case of proper service of process.” Fru Veg Marketing, Inc. v. Vegfruitworld Corp., 896 F.
Supp. 2d 1175, 1182 (S.D. Fla. 2012). The Eleventh Circuit has determined that a return of service
signed under penalty of perjury can establish a prima facie case for proper service. Udoinyion v.
The Guardian Sec., 440 F. App’x 731, 735 (11th Cir. 2011). “If the plaintiff can establish that
service was proper then the burden shift back to the defendant to ‘bring strong and convincing
evidence of insufficient process.’” Fru Veg Mktg., Inc., 896 F. Supp. 2d at 1182 (quoting Hollander
v. Wolf, No. 09–80587–CIV, 2009 WL 3336012, at *3 (S.D. Fla. Oct. 14, 2009)). Furthermore,
“[w]here the plaintiff’s complaint and supporting evidence conflict with the defendant’s affidavits,
the court must construe all reasonable inferences in favor of the plaintiff.” Meier ex rel. Meier v.
Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002); see also Kammona v. Onteco Corp.,
587 F. App’x 575, 578 (11th Cir. 2014) (“Any conflict in the parties’ affidavits or pleadings should

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be resolved in favor of the plaintiff.”) (citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.
1990); Atlantic Lines, Ltd. v. M/V Domburgh, 473 F. Supp. 700, 703 (S.D. Fla.1979)).
III. ANALYSIS
As an initial matter, the Court notes that under Rule 4(e) Plaintiffs may effectuate service
in accordance with Florida law, which is the law of the state where this Court is located, in
accordance with Texas law, which is the law of the state where the service was purportedly made,
or in accordance with other means prescribed in Rule 4(e)(2). See Fed. R. Civ. P. 4(e). Plaintiffs
first argue that service was effectuated under Florida law. See ECF No. [126] at 7-8. As such, the
Court first considers whether Plaintiffs properly effectuated service under Florida law. Florida law
states in relevant part:
If the only address for a person to be served which is discoverable through public
records is a private mailbox, a virtual office, or an executive office or mini suite,
substituted service may be made by leaving a copy of the process with the person
in charge of the private mailbox, virtual office, or executive office or mini suite,
but only if the process server determines that the person to be served maintains a
mailbox, a virtual office, or an executive office or mini suite at that location.
Fla. Stat. § 48.031(6)(a).
In this case, Plaintiffs rightly argue that Ms. Kessler’s Affidavits demonstrate that Plaintiffs
complied with Fla. Stat. § 48.031(6)(a). See ECF No. [126] at 7-8; see also ECF Nos. [21], [34]
(“Affidavits”). In the Affidavits, Ms. Kessler declares, under penalty of perjury, that she
determined that Defendant maintained a private mailbox at 204 Rainbow Drive, #10485. See ECF
Nos. [21], [34]. Ms. Kessler also states that the mailbox was the same address Defendant used for
his Texas driver’s license and that the mailbox was the only address for Defendant that she could
find in the public records. See ECF Nos. [21], [34]. Upon making the determination that there were
no other addresses for Defendant, Ms. Kessler left a copy of the complaints and summonses with
persons in charge of the mailbox who each stated that he/she would provide the legal documents

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to Defendant. See ECF Nos. [21], [34]. More specifically, Ms. Kessler states that she left a copy
of the legal documents with Meghan Murphy on April 23, 2021, and with Geoff Rey on May 6,
2021. See ECF Nos. [21], [34]. Because the Eleventh Circuit has determined that a return of service
signed under penalty of perjury can establish a prima facie case for proper service, see Udoinyion,
440 F. App’x at 735, Plaintiffs have established a prima facie case for proper service.
Defendant, on the other hand, fails to meet the burden of providing “strong and convincing
evidence of insufficient process.” Fru Veg Mktg., Inc., 896 F. Supp. 2d at 1182. First, by focusing
on Texas law and other means of service under Rule 4(e)(2), Defendant’s Motion fails to consider
whether service was proper under Florida law. See generally ECF No. [126]. It is only in
Defendant’s Reply that Defendant considers whether service of process was proper under Florida
law. See generally ECF No. [140]. In the Reply, Defendant argues that the Affidavits do not
include the city, state, and zip code for the address in question, and that the omission is fatal under
Florida law. ECF No. [140] at 3. However, both Affidavits refer to the summons that lists the full
address. See ECF Nos. [21], [34]; see also ECF No. [19]. Ms. Kessler specifically refers to “the
address in the summons” before declaring that “204 Rainbow Dr is a private mailbox service center
and 10485 is the mailbox number for [Defendant].” ECF Nos. [21], [34]. As such, the full address
listed in the summons is incorporated by reference, and the fact that Ms. Kessler did not also state
the full address with the city, state, and zip code in the Affidavits is immaterial.2
In his Reply, Defendant also argues that because Defendant did not use the mailbox in
question after 2019, service was improper regardless of which state law the Court applies. ECF

Defendant’s reliance on Vidal v. Suntrust Bank, 41 So. 3d 401, 402 (Fla. 4th DCA 2010), Klosenski v.
Flaherty, 116 So. 2d 767, 769 (Fla. 1959), and Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985),
is unavailing. The cases set forth the proposition that a defective proof of service cannot be relied upon.
However, in this case, the proofs of service were not defective because the full address is listed in the
referenced summons.
2

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No. [140] at 3. In Defendant’s Affidavit, Defendant states that he stopped using the mailbox since
March 2019. ECF No. [126-1] ¶ 9. However, as Plaintiffs correctly argue, Defendant’s handwritten
statement to the Circuit Court for Orange County on July 9, 2019, identifies the mailbox in question
as the address where he “may be served[.]” See ECF No. [129-1] at 2; ECF No. [129] at 8. In
essence, Defendant has told this Court that he has not used the mailbox since March 2019, yet has
told a separate court that the mailbox in question was his service address as of July 9, 2019. In
light of Defendant’s inconsistent statements to this Court and the Florida state court, the Court
does not consider Defendant’s unsubstantiated claim that he stopped using the mailbox since
March 2019 or that he did not use the mailbox any time after 2019 to be strong and convincing
evidence of insufficient process. Based on Defendant’s own admission to the Florida state court
and Ms. Kessler’s investigation of Defendant’s address, the mailbox in question was a valid
address to serve Defendant when Ms. Kessler served process.
Therefore, Plaintiffs effectuated proper service of process under Florida law. Because
service was proper under Florida law, the Court does not consider other grounds for proper service
of process.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion to Quash
Service of Process, ECF No. [126], is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, on November 17, 2021.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

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Copies to:
Counsel of Record

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