Topps Company, Inc. v. Lapeyrouse, et al

Filing 31

ORDER AND REASONS GRANTING 12 Motion to Dismiss Party. FURTHER ORDERED that Topps is granted ninety (90) days from the date of this Order & Reasons to properly effectuate service on Lapeyrouse in accordance with Rule 4(e) of the Federal Rules of C ivil Procedure. If Topps does not do so, Topps claims against Lapeyrouse will be dismissed without prejudice pursuant to Rule 4(m), unless Topps can demonstrate that its efforts at service are more in line with Conwill v. Greenberg Traurig and like cases. Signed by Judge Barry W Ashe on 1/17/2019. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

THE TOPPS COMPANY, INC.

CIVIL ACTION

VERSUS

NO. 18-4778

PAUL JOSEPH LAPEYROUSE, JR.
d/b/a FUNTIME CANDY & TOY and
FUNTIME (XIAMEN) CANDY CO.,
LTD.

SECTION M (3)

ORDER & REASONS
Before the Court is a motion to dismiss for insufficient service of process, or
alternatively, for lack of personal jurisdiction, filed by defendant Paul Joseph Lapeyrouse, Jr.
(“Lapeyrouse”),1 to which plaintiff The Topps Company, Inc. (“Topps”) responds in opposition,2
and in further support of which Lapeyrouse replies.3 Having considered the applicable law and
the parties’ memoranda, the Court issues this Order & Reasons.
I.

BACKGROUND
This is a patent infringement case. Topps filed this action against Lapeyrouse and a

company with which he was affiliated, Funtime (Xiamen) Candy Co., Ltd. (“Funtime”)
(collectively “Defendants”), alleging that they infringed Topps’ patent for “Juicy Drop Pop”
lollipops by developing and offering for sale a competing lollipop called the “Squeezy Squirt
Pop.”4

Topps learned of the Defendants’ alleged connection to the “Squeezy Squirt Pop”

through parallel litigation pending in the United States District Court for the Southern District of
New York in which Topps brought patent and trade dress infringement claims against Koko’s
Confectionery & Novelty, a division of A&A Global Industries, Inc. (“Koko’s”), for its
1

R. Doc. 12.
R. Doc. 19.
3
R. Doc. 23.
4
R. Doc. 1.
2

involvement with the marketing, importation, sale, and distribution of the “Squeezy Squirt Pop”
in the United States (“the New York litigation”).5
In November 2017, Topps attempted to serve subpoenas for documents related to the
New York litigation on Lapeyrouse and Funtime at an address in Marrero, Louisiana, at which
Topps thought Lapeyrouse resided.6 The process server attempted service seven times between
November 9, 2017, and November 20, 2017.7 At each attempt, the process server noted that
there were no vehicles present and nobody answered the door.8 Also, on November 11, 2017, a
neighbor approached the process server and told him that Lapeyrouse “mostly lives on a sailboat
and is rarely there because he’s traveling around [and] [h]e’s currently in Florida and no idea
when he’ll be back.”9
On January 3, 2018, Topps’ counsel emailed a letter and the subpoenas to Lapeyrouse at
an email address he used to communicate with Koko’s.10 Also on January 3, 2018, Topps’
counsel sent the letter and subpoenas to Lapeyrouse at the Marrero address.11 “P. Lapeyrouse”
signed for the package on January 5, 2018.12 That same day, a process server unsuccessfully
attempted to serve the subpoenas on Lapeyrouse at the Marrerro address.13 The process server
reported that a neighbor told him that he believed that the camper in which Lapeyrouse was
purportedly living was abandoned, and Lapeyrouse’s brother lived next door to the camper.14
Further, Lapeyrouse’s brother told the process server that Lapeyrouse no longer lived at that

5

Id. at 6-7; see The Topps Company, Inc. v. Kokos’ Confectionery & Novelty, a Division of A&A Global
Industries, Inc., C/A No. 16-5954 (S.D.N.Y.). R. Doc. 19-3.
6
R. Doc. 19-12.
7
Id.
8
Id.
9
Id.
10
R. Doc. 19-13.
11
R. Doc. 19-16.
12
R. Doc. 19-17.
13
R. Doc. 19-18.
14
Id. at 1-2.

2

address and might be in the Bahamas.15 The brother did not know when Lapeyrouse would
return to the United States.16
In April 2018, Topps hired a private investigator to locate Lapeyrouse.17 The private
investigator discovered several addresses and businesses in Louisiana that have been associated
with Lapeyrouse over the years.18 Of note, the private investigator concluded that Lapeyrouse
lived with his girlfriend, Sandra Estis (“Estis”), at 4877 Denice LeBlanc Lane in Barataria,
Louisiana, because he was registered to vote at that address, it was the address on file for him
with Equifax and TansUnion TLO, he paid utility bills at this address, and social media posts
indicate that he and Estis are in a relationship and purchased a yacht together in August 2017.19
On May 9, 2018, Topps filed this action against Lapeyrouse and Funtime. On May 18,
2018, a private investigator called Lapeyrouse on his cell phone and asked if he would be
available to receive a package at 4877 Denice LeBlanc Lane.20 Lapeyrouse identified himself
and confirmed that he received mail at that address, but stated that he was on “holiday” and a
package could be left with a “family member” who would be at the house.21 As a result of that
conversation, Topps arranged for Kennith Landry (“Landry”), a process server, to deliver the
summons and complaint to 4877 Denice LeBlanc Lane.22
In his declaration, Landry states that he went to the 4877 Denice LeBlanc Lane on May
18, 2018, and Angela Conley (“Conley”) answered the door.23 Conley invited Landry inside and
discussed the matter with him while he completed the service paperwork.24 Landry told Conley
that the summons and complaint were for Lapeyrouse and the companies with which he was
15

Id. at 2.
Id.
17
R. Doc. 19-31 at 13.
18
Id.
19
R. Doc. 19-23 at 2-3.
20
Id. at 3.
21
Id.
22
Id.
23
R. Doc. 19-22 at 1.
24
Id.
16

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affiliated.25 Conley informed Landry that Lapeyrouse and Estis, Conley’s daughter, were in the
Bahamas, but Estis was on her way back.26 Landry observed a large sailboat docked at the
residence, and Conley said that Lapeyrouse and Estis keep the boat there when they are not
sailing it.27 Landry left the summons and complaint with Conely to give to Lapeyrouse.28
II.

PENDING MOTION
On June 29, 2018, Lapeyrouse filed the instant motion to dismiss for insufficient service

of process, or alternatively, for lack of personal jurisdiction, arguing that Topps did not properly
serve him with process pursuant to Rule 4(e) of the Federal Rules of Civil Procedure, and that he
is not subject to either specific or general personal jurisdiction in Louisiana.29 Lapeyrouse
argues that he does not reside at 4877 Denice LeBlanc Lane, and that even if he did, Conley was
not an appropriate person to receive service for him there because she is a resident of
Oklahoma.30 Topps argues that this Court should accept its attempts to serve Lapeyrouse as
sufficient, and deem him to have been properly served because he clearly has notice of this
action considering that he hired attorneys to defend him and filed the instant motion to dismiss.31
III.

LAW & ANALYSIS
Rule 12(b)(5) of the Federal Rules of Civil Procedure permits a defendant to move to

dismiss a complaint for improper service of process. “A Rule 12(b)(5) motion is the proper
vehicle for challenging the mode of delivery or the lack of delivery of the summons and
complaint.” 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

AND

PROCEDURE § 1353 (3d ed.).
25

Id.
Id.
27
Id. at 1-2.
28
Id. at 2.
29
R. Doc. 12.
30
R. Doc. 12-1 at 3-8. Lapeyrouse also makes arguments regarding personal jurisdiction. R. Doc. 12-1 at
8-13. Because the Court finds that Lapeyrouse was not properly served, it is unnecessary to discuss personal
jurisdiction at this juncture.
31
R. Doc. 19-31 at 17-19. Topps also makes arguments regarding personal jurisdiction, which the Court
need not address at the time.. R. Doc. 19-31 at 19-23.
26

4

Rule 4(e)(1) of the Federal Rules of Civil Procedure, which governs service of process on
individuals, provides:
(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;32 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.
Topps attempted to effectuate domiciliary service on Lapeyrouse by delivering a copy of
the summons and complaint to a person at 4877 Denice LeBlanc Lane, which Topps contends is
Lapeyrouse’s residence. Although Topps’s process server delivered the documents to a person at
that address, Conley, it is undisputed that Conley does not reside there. In her affidavit, Conley
states that she has been a resident of Oklahoma for over forty-five (45) years, and that she was
visiting her daughter’s house at 4877 Denice LeBlanc Lane on May 18, 2018, when she received
the package from the process server.33 Conley further states that she informed the process server
that neither she nor Lapeyrouse resided at that address.34 Whether Lapeyrouse resided at 4877
32

Article 1231 of the Louisiana Code of Civil Procedure provides that service of process may be either
personal or domiciliary. “Personal service is made when a proper officer tenders the citation or other process to the
person to be served” at any location where “the officer making the service may lawfully go to reach the person to be
served.” La. Code Civ. P. arts. 1232 & 1233. “Domiciliary service is made when a proper officer leaves the citation
or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable
age and discretion residing in the domiciliary establishment.” Id. art. 1234.
33
R. Doc. 12-4 at 1-2.
34
Id. at 2.

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Denice LeBlanc Lane is immaterial because it is clear that Conley did not, and thus domiciliary
service was not properly effectuated under Rule 4(e).
Topps, citing Conwill v. Greenberg Traurig, LLP, 2010 WL 2773239 (E.D. La. July 13,
2010), argues that this Court should deem its attempts at proper service to be good enough
because Lapeyrouse has notice of this suit. In Conwill, the court stated:
Whether service is effective turns on the facts and circumstances of each
case. Where service complies precisely with the requirements of Rule 4(e), it will
be effective for personal jurisdiction, even if the individual did not receive actual
notice. Smith v. Kincaid, 249 F.2d 243, 244 (6th Cir. 1957); Capitol Life Ins. Co.
v. Rosen, 69 F.R.D. 83, 88 n.3 (E.D. Pa. 1975). On the other hand, where the
defendant has received actual notice of the action, “the provisions of Rule 4(e)
should be liberally construed to effectuate service and uphold the jurisdiction of
the court.” Karlsson v. Rabinowitz, 318 F.2d 666 (4th Cir. 1963); Rovinski v.
Rowe, 131 F.2d 687, 689 (6th Cir. 1942) (same). “The rules governing service of
process are not designed to create an obstacle course for plaintiffs to navigate, or
a cat-and-mouse game for defendants who are otherwise subject to the court's
jurisdiction.” TRW, Inc. v. Derbyshire, 157 F.R.D. 59, 60 (D. Col. 1994). Rather,
“the rules governing service of process are utilized for the purpose of providing a
likelihood of bringing actual notice to the intended recipient,” Minnesota Mining
& Mfr’g Co. v. Kirkevold, 87 F.R.D. 317, 324 (D. Minn. 1980), and actual notice
satisfies the due process notice requirement and provides the court with personal
jurisdiction. Frank Keevan & Son, Inc. v. Callier Steel Pipe & Tube, Inc., 107
F.R.D. 665, 671 (S.D. Fla. 1985). Where the defendant receives actual notice and
the plaintiff makes a good faith effort to serve the defendant pursuant to the
federal rule, service of process has been effective. Id. Good faith efforts at
service are effective particularly where the defendant has engaged in evasion,
deception, or trickery to avoid being served. Id.
“The service of process is not a game of hide and seek. Where service is
repeatedly effected in accordance with the applicable rules of civil procedure and
in a manner reasonably calculated to notify the defendant of the institution of an
action against him, the defendant cannot claim that the court has no authority to
act when he has willfully evaded the service of process.” Electronics Boutique
Holdings Corp. v. Zuccarini, No. Civ. A. 00-4055, 2001 WL 83388, at *9 (E.D.
Pa. Jan. 25, 2001).
Conwill, 2010 WL 2773239, at *3-4 (quoting Ali v. Mid-Atl. Settlement Servs., Inc., 233 F.R.D.
32, 35-36 (D.D.C. 2006)).

6

Applying that jurisprudence, the court in Conwill found that the plaintiff’s attempts at
service were sufficient to comply with Rule 4(e) because the process server left the documents at
the defendant’s address with a woman who claimed to be his wife. Id. at 4-5. Although the
defendant later stated in his affidavit that the woman was actually a nanny, not his wife, the court
was not satisfied that the defendant was being truthful. Id. The court deemed that the service
was sufficient because it was made to the defendant’s residence, where his wife also lived, and
the defendant had notice of the suit. Id. at 5.
This case is distinguishable from Conwill because it is undisputed that Conley did not
reside at 4877 Denice LeBlanc Lane when the service was attempted and never represented
otherwise.

Indeed, Conley informed the process server that she did not live at that address.

Although Lapeyrouse has proved difficult to serve, Topps cannot rely on service that clearly
does not comport with Rule 4(e). Nevertheless, the Court is concerned about the possibility that
Lapeyrouse has purposefully made himself insusceptible to service anywhere, and the Court will
not tolerate persistent purposeful evasion of service, especially when Lapeyrouse’s able counsel
can easily be authorized by Lapeyrouse’s appointment to receive service of process on his
behalf.
Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, “[i]f a defendant is not
served within 90 days after the complaint is filed, the court ... must dismiss the action without
prejudice against that defendant or order that service be made within a specified time.”
However, “if the plaintiff shows good cause for the failure, the court must extend the time for
service for an appropriate period.” Id. “‘Good cause’ under Rule 4(m) requires ‘at least as much
as would be required to show excusable neglect, as to which simple inadvertence or mistake of
counsel or ignorance of the rules usually does not suffice.’” Gartin v. Par Pharm. Cos., 289 F.
App’x 688, 692 (5th Cir. 2008) (quoting Lambert v. United States, 44 F.3d 296, 299 (5th Cir.
1995)). Further, “courts normally require ‘some showing of good faith on the part of the party
7

seeking an enlargement and some reasonable basis for noncompliance within the time
specified.’” Id. (quoting Lambert, 44 F.3d at 299). Topps has demonstrated that it has diligently
attempted to serve Lapeyrouse, but that he has proved difficult to serve. Therefore, the Court
will grant Topps an additional ninety (90) days from the date of this Order & Reasons to
properly serve Lapeyrouse pursuant to Rule 4(e).
IV.

CONCLUSION
Accordingly, IT IS ORDERED that Lapeyrouse’s motion to dismiss is GRANTED.
IT IS FURTHER ORDERED that Topps is granted ninety (90) days from the date of this

Order & Reasons to properly effectuate service on Lapeyrouse in accordance with Rule 4(e) of
the Federal Rules of Civil Procedure. If Topps does not do so, Topps’ claims against Lapeyrouse
will be dismissed without prejudice pursuant to Rule 4(m), unless Topps can demonstrate that its
efforts at service are more in line with Conwill v. Greenberg Traurig and like cases.

New Orleans, Louisiana, this 17th day of January, 2019.

________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

8