J&J Sports Productions, Inc. v. Bundee's, Inc., et al

Filing 33

ORDER AND REASONS: For the foregoing reasons, defendant's 13 motion to dismiss is DENIED. Plaintiff shall have 30 days from the date of this order to properly serve Bundees. Signed by Judge Sarah S. Vance on 4/17/2019. (mm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
J&J SPORTS PRODUCTIONS INC.
VERSUS

CIVIL ACTION
NO. 18-3480

BUNDEE’S INC., ET AL.

SECTION “R” (1)

ORDER AND REASONS
Before the Court is defendant Bundee’s motion to dismiss for
insufficient service of process. Plaintiff has not properly served Bundee’s and
has not shown good cause for its failure. But because plaintiff’s failure to
correctly serve Bundee’s is unintentional and has not prejudiced Bundee’s,
dismissal is not warranted.
I.

BACKGROUND
This case arises out of a dispute regarding streaming rights to a boxing

match between Floyd Mayweather Jr. and Manny Pacquiao.1 Plaintiff J&J
Sports Productions is a distributor of closed circuit pay-per-view events.2
Plaintiff alleges that it held the exclusive rights to distribute the boxing
match.3 It alleges that defendants Charles Bell Jr. and Gerald K. Sayles

1
2
3

R. Doc. 1.
Id. at 4 ¶ 9.
Id. at 2 ¶ 2.

supervised and directed their employees to broadcast the match unlawfully
at a business operating as Club Continental.4
On April 2, 2018, plaintiff filed a complaint against Bell, Sayles, and
the business entity Bundee’s Inc., d/b/a Club Continental.5 Summonses
were issued to all three defendants on April 3, 2018.6 None was returned
executed. On August 6, 2018, the Court issued a show cause order directing
plaintiffs to show good cause in writing within 20 days why defendants
should not be dismissed for failure to prosecute.7 Plaintiff filed a motion to
extend the time for service, which the Court granted.8 Plaintiff then made
several attempts to serve defendants. First, plaintiff attempted to serve both
Bell and Bundee’s at 10953 Chaucer Street on August 10, 2018.9 Plaintiff
then tried to serve Bell at 238 Solomon Drive on August 21, 2018.10 Finally,
plaintiff attempted to serve both Bell and Bundee’s at 9734 Hayne Boulevard
on September 6, 2018.11

None of these attempts was successful.

On

September 24, 2018, the plaintiff issued a summons to Bundee’s via the

4
5
6
7
8
9
10
11

Id. at 6-7 ¶ 13.
R. Doc. 1.
R. Doc. 4.
R. Doc. 5.
R. Doc. 8.
R. Doc. 15; R. Doc. 18.
R. Doc. 17.
R. Doc. 16; R. Doc. 19.
2

Louisiana Secretary of State.12 After it was executed by the Secretary of State,
J&J filed it into the record on October 9, 2018.13 On the same day, plaintiff
filed an executed summons for Sayles.14 Bell remains unserved.15 On April
9, 2019, the Court dismissed plaintiff’s case against Bell without prejudice
for failure to show cause as to why he had not been served.16
Bundee’s has now filed a motion to dismiss for insufficient service of
process under Rule 12(b)(5).17 Plaintiff opposes the motion, because it
alleges that it attempted to serve Bell, Bundee’s agent for service of process,
at three different addresses unsuccessfully before serving the Louisiana
Secretary of State.18 It therefore argues that service on the Secretary of State
was proper.19

II.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(5) allows a defendant to dismiss

claims against it because of the plaintiff’s insufficient service of process

12
13
14
15
16
17
18
19

R. Doc. 10.
R. Doc. 11.
R. Doc. 12.
R. Doc. 30.
R. Doc. 31.
R. Doc. 13.
R. Doc. 22.
Id.
3

under Federal Rule of Civil Procedure 4. Fed. R. Civ. P. 12(b)(5). “The
district court enjoys a broad discretion in determining whether to dismiss an
action for ineffective service of process.” George v. U.S. Dep’t of Labor, 788
F.2d 1115, 1116 (5th Cir. 1986).
Under Rule 4, a plaintiff must effect proper service on a defendant
within 90 days after filing the complaint. Fed. R. Civ. P. 4(m). The Rule
provides:
If a defendant is not served within 90 days after the complaint is
filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.
Id. Federal Rule of Civil Procedure 4(h) governs service on a corporation,
partnership, or association. The Rule provides that corporations must be
served in the United States, either (1) “in the manner prescribed by Rule
4(e)(1) for serving an individual,” or (2) “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).
Rule 4(e)(1) allows a plaintiff to serve an individual by “following state
law for serving a summons.”

Fed. R. Civ. P. 4(e)(1).
4

In Louisiana,

corporations must be served “by personal service on any one of its agents for
service of process.” La. Code. Civ. P. art 1261. “Service of process directed to
a corporate defendant and made on one other than the person authorized to
accept service is illegal and without effect.” State v. Kee Food, Inc., 232 So.
3d 29, 34 (La. App. 1 Cir. 2017). But if the person attempting to make service
“certifies that he is unable, after due diligence, to serve the designated agent,”
service may be made: (1) by personal service of an officer or director named
in the last report filed with the Secretary of State; (2) by personal service on
any employee where the business of the corporation is regularly conducted;
or (3) by registered or certified mail. Id.; La. R. S. 3204. Finally, “[i]f the
officer making service certifies that he is unable, after diligent effort, to have
service made as provided in Article 1261, then the service may be made
personally on the secretary of state, or on a person in his office designated to
receive service of process on corporations.” La. Code Civ. P. art. 1262. Thus,
service may not be made via the Secretary of State’s office under Louisiana
law unless a plaintiff certifies that service cannot be completed using any of
the methods provided in Article 1261.

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III. DISCUSSION
Defendant argues that plaintiff’s service on the Secretary of State was
improper because Louisiana law requires personal service of process on an
agent authorized to receive service.20 Bell is the only agent authorized to
receive service for Bundee’s.21
Plaintiff has alleged that service on the Louisiana Secretary of State was
proper because it was not able to serve Bell personally despite three
attempts.22 This account is corroborated by the three failed attempts to serve
Bell in the record.23 But a plaintiff may effect service using a method other
than on the registered agent only when the process server, not the plaintiff,
certifies that he is unable, after due diligence, to serve the designated agent.
La. Code Civ. P. art 1261. See Rabito v. McClain Invs., LLC, _ So. 3d _ (La.
App. 4 Cir. 2019), 2019 WL 302063, at *3 (Jan. 23, 2019) (“Although this
Court has never directly addressed the proper interpretation of the ‘person
attempting to make service’ we have evinced an understanding that such
person is the process server.”). The process server has not certified that he
was unable to serve Bell despite diligent effort.

20
21
22
23

R. Doc. 13-1 at 3-4.
R. Doc. 13-2.
R. Doc. 22 at 1-3.
R. Doc. 17; R. Doc. 18; R. Doc. 19.
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Further, even if the process server had made the required certification,
service on the Secretary of State would not be proper, unless service could
not be made under the alternative procedures given in Article 1261. See La.
Code Civ. P. art 1262. There is no evidence in the record that plaintiff
attempted to serve Bundee’s though the alternative measures provided in
Article 1261. For example, plaintiff could have personally served Sayles, who
was listed as an officer of Bundee’s on the company’s business last report
filed with the Secretary of State.24 Indeed, plaintiff effectuated service on
Sayles on June 2, 2018.25
In addition, plaintiff has not shown due diligence because it attempted
to serve Bell at 238 Solomon Drive, the address listed in the company’s
business filings, only once.26 The unexecuted summons states that there was
“no answer at [the] residence.”27

A single unsuccessful attempt at the

address listed by the Secretary of State, even when combined with two
attempts at different addresses, does not constitute due diligence under
Louisiana law. See Gordon v. A-1 St. Bernard Taxi & Delivery, 226 So. 3d
494, 501 (La. App. 4 Cir. 2017) (multiple attempts, when only one was at the

24
25
26
27

R. Doc. 31-2.
R. Doc. 12.
See R. Doc. 17.
Id.
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correct address, is not diligent effort); La. Dist. Council of Assemblies of God,
Inc. v. Victory Temple Assembly of God, 376 So. 2d 169, 171 (La. App. 4 Cir.
1979) (six attempts to serve a church, when none was on a Sunday morning,
is not a diligent effort). Plaintiff has not provided documentation from the
process server certifying that he was unable to serve Bundee’s after a diligent
effort, nor has it shown due diligence in its efforts to serve Bundee’s. Service
on the Secretary of State was therefore improper.
Plaintiff argues that its requirement of service on Bundee’s should be
waived or modified because the company’s lawyer refuses to disclose Bell’s
whereabouts or make him available for service.28 It is true that, “[t]he
purpose of Rule 4(m) is to prod the slow-footed plaintiff, not to reward the
crafty or evasive defendant.”

Wright & Miller, 4B Federal Practice &

Procedure § 1137 (4th ed. 2018). Courts have often found good cause for a
plaintiff’s failure to effect service timely when a defendant has actual notice
and may be evading service. See Fed. R. Civ. P. 4, Comments to the 1993
Amendment (“Relief may be justified, for example . . . if the defendant is
evading service or conceals a defect in attempted service.”); Karlsson v.
Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963) (“[W]here actual notice of the
commencement of the action and the duty to defend has been received by the

28

R. Doc. 22-1 at 2-3.
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one served, the provisions of [Rule 4] should be liberally construed to
effectuate service and uphold the jurisdiction of the court, thus insuring the
opportunity for a trial on the merits.”).
There is no evidence of evasion in this case. Plaintiff argues that
counsel for Bundee’s should have filed an answer to its complaint, but it
admits that it did not formally request a waiver of service from him.29
Similarly, plaintiff did not ask Bundee’s counsel for Bell’s current address,
nor did it ask for help in locating Bell so that he could be served. Plaintiff
merely asserts that it received an email from Bell’s attorney, that it requested
that Bundee’s file an answer to its complaint, and that defendant did not
respond or file an answer.30 While it is possible that Bell has been evading
service, the current record does not demonstrate that his failure to receive
service is deliberate. The Court therefore does not find that plaintiff has
shown good cause for its delay in service on the basis of defendant’s alleged
efforts to evade service.
Nonetheless, dismissal is not appropriate on the current record. A
district court has discretion to extend a plaintiff’s deadline even without a
showing of good cause. Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996)

29
30

R. Doc. 22-1 at 2.
Id. at 1-2.
9

(“If good cause does not exist, the court may, in its discretion, decide
whether to dismiss the case without prejudice or extend time for service.”)
(emphasis in original). If a dismissal under the discretionary provisions of
Rule 4 will likely bar future litigation, the dismissal should “be reviewed
under the same heightened standard used to review a dismissal with
prejudice.” Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 325-26 (5th Cir.
2008) (citing Boazman v. Econ. Lab., Inc., 537 F.2d 210, 213 (5th Cir. 1976)).
Under this heightened standard, dismissal “is warranted only where ‘a clear
record of delay or contumacious conduct by the plaintiff’ exists and a ‘lesser
sanction would not better serve the interests of justice.’” Id. at 326 (quoting
Gray v. Fid. Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981)). When the
Fifth Circuit has affirmed dismissals with prejudice, “it has generally found
at least one of three aggravating factors: (1) delay caused by [the] plaintiff
himself and not his attorney; (2) actual prejudice to the defendant; or (3)
delay caused by intentional conduct.” Id. (quoting Price v. McGlathery, 792
F.2d 472, 474 (5th Cir. 1986)).
The conduct in question in this case occurred on May 2, 2015.31 Thus,
plaintiff’s claims would likely be barred by the relevant statutes of
limitations. There is no evidence that plaintiff caused the delay. Nor is there

31

R. Doc. 1 at 5 ¶ 12.
10

evidence of prejudice to the defendant, because defendant is aware of this
action despite being served improperly. Finally, there is no evidence that the
delay was caused by plaintiff’s intentional conduct. Indeed, the evidence
indicates that plaintiff has been attempting in good faith to serve defendant,
and that defendant has not chosen to help plaintiff in its attempts. Therefore,
dismissal is not warranted.

IV.

CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss is DENIED.

Plaintiff shall have 30 days from the date of this order to properly serve
Bundee’s.

17th
New Orleans, Louisiana, this _____ day of April, 2019.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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