J & J SPORTS PRODUCTIONS, INC. v. PUENTE et al
OPINION AND ORDER denying 28 MOTION Appointment of US Marshal Service to Attempt Service of Process filed by J & J Sports Productions Inc. Signed by Magistrate Judge Paul R Cherry on 9/22/16. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
J & J SPORTS PRODUCTIONS, INC.,
MARCO PUENTE, individually and d/b/a )
Estrella’s Sports Bar, and RUMURS LLC, )
an unknown business entity d/b/a
Estrella’s Sports Bar,
CAUSE NO.: 2:15-CV-353-RL-PRC
OPINION AND ORDER
This matter is before the Court on a Motion for Appointment of U.S. Marshal Service to Serve
Summons and Complaint [DE 28], filed by Plaintiff on September 21, 2016.
Plaintiff filed a Complaint on September 11, 2015. Plaintiff attempted service by the Lake
County Sheriff’s Office, which was returned indicating a bad address when attempted both by
personal service and mail. An alternative address was located and Alias Summons were issued by the
Court. Service was attempted via Certified Mail, Restricted Delivery, Return Receipt Requested and
were returned undeliverable, indicating that the Defendant and registered agent Marco Puente had
moved and left no forwarding address. Further research revealed an address in Phoenix, Arizona.
Alias summons were issued and service was attempted at that address by Certified Mail, Restricted
Delivery, Return Receipt Requested. The summons were returned unclaimed. Plaintiff now asks the
Court to appoint the U.S. Marshal Service to personally attempt service of Summons and Complaint
at the Phoenix, Arizona, address.
Federal Rule of Civil Procedure 4(c), regarding service of summons, provides:
(1) In General. A summons must be served with a copy of the complaint. The
plaintiff is responsible for having the summons and complaint served within
the time allowed by Rule 4(m) and must furnish the necessary copies to the
person who makes service.
(2) By Whom. Any person who is at least 18 years old and not a party may
serve a summons and complaint.
(3) By a Marshal or Someone Specially Appointed. At the plaintiff’s
request, the court may order that service be made by a United States marshal
or deputy marshal or by a person specially appointed by the court. The court
must so order if the plaintiff is authorized to proceed in forma pauperis under
28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c). Because Plaintiff is not proceeding in forma pauperis, the decision to order that
service be made by the United States Marshal Service is discretionary with the court. See id.
Federal Rule of Civil Procedure 4(e) provides the methods for serving an individual within
a judicial district of the United States:
(e) Serving an Individual Within a Judicial District of the United States. Unless
federal law provides otherwise, an individual--other than a minor, an incompetent
person, or a person whose waiver has been filed--may be served in a judicial district
of the United States by:
(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
(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
(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) (emphasis added). For service on business entities, the Rule provides:
(h) Serving a Corporation, Partnership, or Association. Unless federal law
provides otherwise or the defendant’s waiver has been filed, a domestic or foreign
corporation, or a partnership or other unincorporated association that is subject to suit
under a common name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an
(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; or
(2) at a place not within any judicial district of the United States, in any
manner prescribed by Rule 4(f) for serving an individual, except personal
delivery under (f)(2)(C)(i).
Fed. R. Civ. P. 4(h) (emphasis added).
Indiana law allows for serving an individual by the following methods:
(A) In General. Service may be made upon an individual, or an individual acting in
a representative capacity, by:
(1) sending a copy of the summons and complaint by registered or certified
mail or other public means by which a written acknowledgment of receipt may
be requested and obtained to his residence, place of business or employment
with return receipt requested and returned showing receipt of the letter; or
(2) delivering a copy of the summons and complaint to him personally; or
(3) leaving a copy of the summons and complaint at his dwelling house or
usual place of abode; or
(4) serving his agent as provided by rule, statute or valid agreement.
(B) Copy Service to Be Followed With Mail. Whenever service is made under
Clause (3) or (4) of subdivision (A), the person making the service also shall send by
first class mail, a copy of the summons without the complaint to the last known
address of the person being served, and this fact shall be shown upon the return.
Ind. R. Trial P. 4.1 (emphasis added). As for service on a business entity, Indiana law provides:
(B) Manner of service. Service under subdivision (A) of this rule shall be made on
the proper person in the manner provided by these rules for service upon individuals,
but a person seeking service or his attorney shall not knowingly direct service to be
made at the person’s dwelling house or place of abode, unless such is an address
furnished under the requirements of a statute or valid agreement, or unless an affidavit
on or attached to the summons states that service in another manner is impractical.
Ind. R. Trial P. 4.6 (emphasis added).
Arizona law allows for service on individuals as follows:
(d) Service of Summons Upon Individuals. Service upon an individual from
whom a waiver has not been obtained and filed, other than those specified in
paragraphs (e), (f) and (g) of this Rule 4.1, shall be effected by delivering a copy of
the summons and of the pleading to that individual personally or by leaving copies
thereof at that individual’s dwelling house or usual place of abode with some
person of suitable age and discretion then residing therein or by delivering a copy
of the summons and of the pleading to an agent authorized by appointment or by
law to receive service of process.
Arizona R. Civ. P. 4.1(d) (emphasis added). As for business entities:
(i) Service of Summons Upon Corporations, Partnerships or Other
Unincorporated Associations. Service upon a domestic or foreign corporation or
upon a partnership or other unincorporated association which is subject to suit in a
common name, and from which a waiver has not been obtained and filed, shall be
effected by delivering a copy of the summons and of the pleading to a partner, an
officer, a managing or general agent, or to any other agent authorized by
appointment or by law to receive service of process and, if the agent is one
authorized by statute to receive service and the statute so requires, by also mailing
a copy to the party on whose behalf the agent accepted or received service.
Arizona R. Civ. P. 4.1(i).
Plaintiff has not attempted service of summons on Defendants at the new Arizona address by
delivering a copy to Defendants personally or by leaving a copy with a person of suitable age and
discretion who lives at Defendants’ dwelling or usual place of abode as permitted under the federal
and Arizona rules or by delivering a copy to Dependants personally or by leaving a copy at
Defendants’ dwelling house or usual place of abode with a copy sent by first class mail as permitted
under the Indiana rules.
Therefore, the Court DENIES without prejudice the Motion for Appointment of U.S.
Marshal Service to Serve Summons and Complaint [DE 28].
SO ORDERED this 22nd day of September, 2016.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
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