Joe Hand Promotions, Inc. v. Castro & Cedillos, Inc. et al

Filing 10

MEMORANDUM AND ORDER DENYING 8 motion for entry of default and DIRECTING the clerk to reissue summonses. Signed by Chief Judge Deborah K. Chasanow on 3/6/12. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
G & G CLOSED CIRCUIT EVENTS,
LLC

:

v.

:

Civil Action No. DKC 11-3274

:
CASTRO & CEDILLOS, INC., et al.
:
MEMORANDUM OPINION AND ORDER
This action was commenced on November 15, 2011, by Plaintiff
Joe Hand Promotions, Inc., “a Pennsylvania corporation with its
principal

place

of

business

located

at

Boulevard, Feasterville, PA 19053-7847.”

407

E.

Pennsylvania

(ECF No. 1 ¶ 5).

The

complaint named as defendants Castro & Cedillos, Inc., t/a El
Puente De Oro Restaurant (“Castro & Cedillos”); Ciro Castro, a/k/a
Circo Castro (“Ciro Castro”); and Anna Ruth Castro.

Plaintiffs

alleged violations of 47 U.S.C. §§ 605 and 553 and the common law
tort of conversion related to Defendants’ unauthorized interception
and transmission of “‘Ultimate Fighting Championship 106’: Tito
Ortiz v. Forrest Griffin II,” a sporting event telecast on November
21, 2009.

(ECF No. 1 ¶ 9).

Attached to the complaint was the

affidavit of an investigator, averring that he witnessed a telecast
of “[t]he Super Six World Boxing Classic event” on the same date at
El Puento De Oro Restaurant in Silver Spring, Maryland.

(ECF No.

1-2, at 2).
The record reflects that Castro & Cedillos and Ms. Castro were
served on December 29, 2011.

(ECF No. 5).

A notice of bankruptcy

was filed with respect to Ciro Castro on January 24, 2012, and the
case was administratively closed as to that defendant.

When the

remaining defendants failed to respond within the requisite time
period, Plaintiff moved for clerk’s entry of default.

(ECF No. 8).

Before default could be entered, however, a new plaintiff – “G & G
Closed Circuit Events, LLC, . . . a California corporation with its
principal place of business located at 2380 South Bascom Avenue,
Suite 200, Campbell, CA 95008” – filed an amended complaint, by the
same counsel, against Castro & Cedillos and Ms. Castro related to
Defendants’ unauthorized interception and transmission of “Super
Six World Boxing Classic: The Super Middleweights,” a different
sporting event telecast on the same date as the event referenced in
the original complaint.

(ECF No. 9 ¶¶ 5, 9).

Closed

attached

Circuit

Events

to

the

Counsel for G & G

amended

complaint

a

certificate of service, asserting that copies of the amended
complaint were mailed to Ms. Castro, on her own behalf and as
resident agent for Castro & Cedillos.

(ECF No. 9-2).

It appears that the original complaint – filed by the same
attorneys and against the same defendants, with the exception of
Ciro Castro, the party in bankruptcy – simply named the wrong
plaintiff and alleged facts relating to the wrong event.

The court

notes that the same attorneys are counsel of record in many similar
cases

filed

plaintiffs,

in
and

this
that

court
the

involving
complaints

2

a

number
in

of

those

different
cases

are

substantially similar in form.

Thus, it appears that counsel

simply cut-and-pasted the wrong plaintiff and referred to the wrong
sporting event in the original complaint, then attempted to correct
these errors by filing an amended complaint.
Federal Rule of Civil Procedure 5(a)(2) provides that an
amended pleading that adds a new claim must be served on a party in
default

in

the

manner

prescribed

by

Rule

4.

Although

the

defendants in this case are not technically in default, the amended
complaint clearly contains a new claim for relief, insofar as it is
brought by a new plaintiff and alleges different facts than those
set forth in the original complaint.

The purpose of Rule 5(a)(2)

is to “ensure[] that a party, having been served, is able to make
an informed decision not to answer a complaint without fearing
additional

exposure

to

liability

for

claims

raised

only

in

subsequent complaints that are never served.”

Blair v. City of

Worcester, 522 F.3d 105, 109 (1st Cir. 2008).

In this case, the

spirit of that rule would be served by requiring counsel for
Plaintiff to start the service process anew.

The new plaintiff, G

& G Closed Circuit Events, LLC, is not entitled to entry of default
based on Defendants’ failure to respond to a complaint filed by a
different party and containing allegations with respect to a
different event.
Accordingly, it is this 6th day of March, 2012, by the United
States District Court for the District of Maryland, ORDERED that:

3

1.

The motion for entry of default filed by Plaintiff Joe

Hand Promotions, Inc. (ECF No. 8), BE, and the same hereby IS,
DENIED AS MOOT in light of the amended complaint;
2.

The clerk is directed to reissue summonses with respect

to Plaintiff’s amended complaint for service by Plaintiff in
accordance with Fed.R.Civ.P. 4; and
3.

The

clerk

is

directed

to

transmit

copies

of

this

Memorandum Opinion and Order to counsel for Plaintiff and directly
to the non-represented defendants.

_________/s/___________________
DEBORAH K. CHASANOW
United States District Judge

4