G&G Closed Circuit Events, LLC v. Elevation Cigars & Lounge LLC

Filing 26

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 9/25/2024. (sat, Chambers)

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

:
:
:

ELEVATION CIGARS & LOUNGE LLC,
et al., a/k/a Cigars 210, LLC
t/a Cigars 210

Civil Action No. DKC 23-2477

:
:

MEMORANDUM OPINION
Plaintiff G&G Closed Circuit Events, LLC (“Plaintiff”) filed
a motion on September 6, 2024, seeking to extend the time to serve
Defendant

Robert

Gooden

alternative service.

(“Mr.

Gooden”)

(ECF No. 25).

and

to

authorize

The issues have been briefed,

and the court now rules, no hearing being deemed necessary.

Local

Rule 105.6. For the following reasons, the motion will be granted.
I.

Background
Plaintiff filed this action on September 12, 2023, alleging

that

Defendant

Elevation

Cigars

&

Lounge,

LLC

(“Elevation”)

unlawfully intercepted the broadcast of the Gervonta Davis v.
Hector Luis Garcia championship bout on January 7, 2023, on which
Plaintiff has the exclusive nationwide commercial distribution
rights.

(ECF No. 1).

The Clerk entered default against Elevation

on November 13, 2023, for its failure to plead after proper service
and issued a notice providing Elevation thirty (30) days to file
a motion to vacate the default.

(ECF Nos. 10, 11).

Mr. Gooden

filed a letter on December 13, 2023, identifying himself as the
owner of Elevation and requesting “an extension of the Notice of
Default.”

(ECF No. 12).

On January 24, 2024, the court granted

Plaintiff leave to amend its complaint to add Robert Gooden as a
Defendant.

(ECF No. 15).

The same date, the Clerk docketed

Plaintiff’s Amended Complaint (ECF No. 16) and issued a Summons
for service on Mr. Gooden.
Thereafter,

Plaintiff

(ECF No. 17).
has

been

unsuccessful

service on Mr. Gooden after numerous attempts.

in

effecting

Plaintiff filed a

motion on April 24, 2024, requesting additional time to serve Mr.
Gooden citing unsuccessful service attempts.

(ECF No. 21).

The

motion was granted, and Plaintiff was provided until July 23, 2024,
to serve Mr. Gooden (ECF No. 22).
Plaintiff attaches two affidavits of attempted service to the
instant motion signed by John Hagis under penalty of perjury. (ECF
No. 25-4).

They show that Mr. Hagis made two attempts to serve

Mr. Gooden at Elevation’s business address, six attempts at a
residence he owns in Clinton, and another attempt at an address in
Waldorf, Maryland.

On early attempts to serve at the Clinton,

Maryland address, Mr. Hagis was told by the occupants that Mr.
Gooden moved to Bagpipe Lane in Waldorf Maryland and that the home
was rented.

A service attempt was made to the address in Waldorf,
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but Mr. Hagis was told that Mr. Gooden moved years ago.
attempts

to

serve

Mr.

Gooden

at

the

Clinton

On later

residence,

the

occupants refused to answer the door even though Mr. Hagis could
hear that the occupants were home and cars were in the driveway.
I.

Analysis
A. Plaintiff’s Motion to Extend Time to Effect Service
Rule 4(m) of the Federal Rules of Civil Procedure 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.

Fed.R.Civ.P. 4(m).

As properly interpreted, a court must extend

the time if good cause is shown and has discretion to extend the
time in any event. Gelin v. Shuman, 35 F.4th 212, 219 (4th Cir.
2022).
“Good cause” generally requires the Plaintiff to demonstrate
that

it

service.”

exercised

“reasonable

diligence

in

trying

to

effect

Jones v. Sears, Roebuck & Co., No. DKC-15-3092, 2016 WL

1696557, at *2 (D.Md. Apr. 28, 2016).

Circumstances amounting to

good cause may be “where a defendant is evading service; where the
plaintiff experienced difficulty in obtaining a defendant’s proper
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address; where court staff misdirected a pro se plaintiff as to
the appropriate procedure for service; or where plaintiff was
unaware of the defendant in service until after the deadline
expired.” Id. (citing Hoffman v. Balt. Police Dep’t, 379 F.Supp.2d
778, 786 (D.Md. 2005)).
Plaintiff contends that good cause has been established to
extend the deadline because good faith efforts to serve Mr. Gooden
have not been successful.

The court agrees that Plaintiff has

shown that reasonable and diligent efforts were made to effect
service.

Accordingly, good cause exists to extend the time to

serve Mr. Gooden.
B. Plaintiff’s Motion for Alternate Service
Rule 4(e) (1) provides, in pertinent part, that an individual
defendant may be served pursuant to “state law . . . in the state
where the district court is located.”

Under Maryland law, service

can be effected
(1) by delivering to the person to be served
a copy of the summons, complaint, and all
other papers filed with it; (2) if the person
to be served is an individual, by leaving a
copy of the summons, complaint, and all other
papers filed with it at the individual’s
dwelling house or usual place of abode with a
resident of suitable age and discretion; or
(3) by mailing to the person to be served a
copy of the summons, complaint, and all other
papers filed with it by certified mail
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requesting: “Restricted Delivery--show
whom, date, address of delivery.”

to

Md. Rules 2-121(a). Maryland Rule 2-121(b) applies when defendants
are evading service, and provides that:
When proof is made by affidavit that a
defendant has acted to evade service, the
court may order that service be made by
mailing a copy of the summons, complaint, and
all other papers filed with it to the
defendant at the defendant’s last known
residence and delivering a copy of each to a
person of suitable age and discretion at the
place of business of the defendant.
Md. Rules 2-121(b).

Maryland Rule 2–121(c), in turn, provides

that:
When proof is made by affidavit that good
faith efforts to serve the defendant pursuant
to section (a) of this Rule have not succeeded
and that service pursuant to section (b) of
this Rule is inapplicable or impracticable,
the court may order any other means of service
that it deems appropriate in the circumstances
and reasonably calculated to give actual
notice.
Md. Rules 2-121(c).

To pass constitutional muster, notice must be

“reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them
an opportunity to present their objections.”

Mullane v. Cent.

Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950); Elmco Props.,
Inc. v. Second Nat’l Fed. Sav. Ass’n, 94 F.3d 914, 920-21 (4th
Cir. 1996).

“When available, the combination of the two service
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options of mailing to the last known address and posting service
on the door of that address, sometimes referred to as ‘nail and
mail,’ continuously has been found to provide the constitutionally
required level of notice in a situation demanding alternative
service.”

Fid. Nat’l Title Ins. Co. v. M&R Title, Inc., No. PWG-

12-148, 2013 WL 12423808, at *2 (D.Md. Feb. 15, 2013).
As addressed above, Plaintiff has provided affidavits from
Mr. Hagis showing nine unsuccessful service attempts on Mr. Gooden.
(ECF No. 25-4).
failed.

Obviously, service under Md. Rule 2-121(a) has

Md. Rule 2-121(b) then requires an affidavit proving that

“defendant has acted to evade service.”

Mr. Gooden is aware of

this litigation—and even sent the court a letter on behalf of the
business. (ECF No. 12).

After receiving that letter, the court

entered an order noting the attempted filing by the business, and
advising

interested

parties

that

a

corporate

entity

must

be

represented by counsel if it wishes to appear in this court. (ECF
No. 15).

A copy of the order was mailed to Mr. Gooden at the

business’ address but the mail was returned as undeliverable. (ECF
No. 18).
Plaintiff’s proposal to effect “nail and mail” service to the
residence Mr. Gooden owns in Clinton, Maryland likely will provide
notice “reasonably calculated, under all the circumstances, to
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apprise [him] of the pendency of the action and afford [him] an
opportunity to present [his] objections.”
314.

Mullane, 339 U.S. at

The property record appended to Plaintiff’s motion reflects

that the property is designated as a “principal residence.”
II.

Conclusion
Plaintiff

has

attempted

diligently

to

serve

Mr.

Gooden.

Importantly, Mr. Gooden filed a letter in this case on December 13,
2023, identifying himself as the owner of co-Defendant Elevation
Cigars & Lounge LLC and requesting “an extension of the Notice of
Default.”

(ECF No. 12).

Thus, Mr. Gooden has actual notice of

this action against Elevation.
In the event, however, that he is unaware that he has been
added as a defendant in the Amended Complaint, the court concludes
that effectuating service by posting on the door and mailing the
Summons and Amended Complaint to the residence owned by Mr. Gooden
in Clinton, Maryland is reasonably calculated to provide him with
notice of this case and give him a reasonable opportunity to
respond.

A separate order follows.

/s/
DEBORAH K. CHASANOW
United States District Judge

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