Carey International, Inc. v. Carey Limo Service Inc.

Filing 18

Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER Accordingly, it is hereby ORDERED that: 1. Plaintiff's Motion Seeking Declaration of Effective Service (Docket No. 12) is DENIED. 2. The time for service is EXTENDED until October 21, 2011. If a proper Return of Service is not filed by that date, the case will be dismissed. See Fed. R. Civ. P. 4(m). 3. Plaintiff's Motion for Preliminary Injunction (Docket No. 4) is DENIED without prejudice. 4. Plaintiff's Request for Entry of Default (Docket No 16) is DENIED.(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CAREY INTERNATIONAL, INC.
Plaintiff,
v.

CAREY LIMO SERVICE INC.
Defendant.

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C.A. No. 10-12142-MLW

MEMORANDUM AND ORDER
WOLF, D.J.

September 21, 2011

On December 13, 2010, plaintiff commenced this case alleging
that defendant is engaged in unauthorized use of plaintiff's
federally registered service marks, including "CAREY." Plaintiff
also filed a Motion for Preliminary Injunction. Defendant is a
Massachusetts corporation.
On December 13, 2010, plaintiff attempted to serve process on
defendant by delivering a copy of the complaint and summons to the
address listed on defendant's articles of incorporation. However,
that address is a rented mailbox in a Massachusetts UPS store at
which no officer or employee of defendant is present. Plaintiff
chose to serve process on a UPS desk clerk who was in the store at
the

time.

Plaintiff

subsequently

corresponded

and

spoke

by

telephone with a person named "Borris" in New York who claimed to
be

a

messenger

for

"Mr.

Erlich,"

the

president,

director,

treasurer, and secretary of defendant. However, "Borris" disclaimed
any responsibility for defendant. On December 15, 2010, plaintiff

filed a Motion Seeking Declaration of Effective Service. It argues
that service on the UPS employee, augmented by the correspondence
and

telephone

conversations

with

"Borris,"

was

sufficient

to

effectuate service of process pursuant to either Federal Rule of
Civil Procedure 4(h)(1)(A) or 4(h)(1)(B). Plaintiff has since filed
a Request for Entry of Default.
Rule 4(h)(1)(A) authorizes service of process on a corporation
pursuant to Rule 4(e)(1). Rule 4(e)(1), in turn, authorizes service
of

process

in

accordance

with

state

law.

As

defendant

is

a

Massachusetts corporation, service of process may be achieved
pursuant to M.G.L. c. 223, §37, which authorizes serving process on
a

corporation's

appointed

"president,

pursuant

to

treasurer,

section

49

of

clerk,
chapter

resident
156D,

agent

cashier,

secretary, agent or other officer in charge of its business, or, if
no such officer is found within the county, upon any member of the
corporation." Plaintiff contends that the UPS employee qualifies as
an "agent" under this provision. However, courts construe the
enumerated list of individuals in M.G.L. c. 223, §37 narrowly. See,
e.g., Kagan v. United Vacuum Appliance Corp., 357 Mass. 680, 685
(1970); Am. Institute of Certified Pub. Accountants v. Affinity
Card, Inc., 8 F. Supp. 2d 372, 378 (S.D.N.Y. 1998) (collecting
cases). Plaintiff cites no authority for the proposition that a
desk clerk employed by a private postal box company can qualify as
an "agent . . . in charge of [defendant's] business" for purposes

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of M.G.L. c. 223, §37. Moreover, M.G.L. c. 223, §37 authorizes a
court to issue an order of notice to a defendant corporation upon
application by plaintiff if none of the enumerated officers or
agents can be located after diligent search. Plaintiff has not
sought such an order.
Rule

4(h)(1)(B)

authorizes

service

of

process

on

a

corporation's "officer, managing or general agent, or any other
agent authorized by appointment or by law to receive service of
process." Again, plaintiff argues that the UPS desk clerk qualifies
as an "agent" of defendant. However, plaintiff offers no case in
support of its argument. Indeed, courts have repeatedly held that
a receptionist does not ordinarily qualify as a corporation's
agent. See, e.g., Grand Ent. Grp. v. Star Media Sales, 988 F.2d
476, 485 (3rd Cir. 1993); Bender v. Nat'l Semiconductor Corp., 2009
WL 2912522, at *3 (N.D. Cal. 2009); Dobbins v. Kroger Co., 2009 WL
2776665, at *1 (N.D. Tex. 2009); see also Charles A. Wright &
Arthur R. Miller, 4A Federal Practice and Procedure: Civil 3d
§1101, 560-62 (2002).
Accordingly, plaintiff has not served process on defendant in
a manner authorized by Federal Rule of Civil Procedure 4. Plaintiff
was required to effectuate service by April 12, 2011. See Fed. R.
Civ. P. 4(m). Under such circumstances, the court may dismiss the
action against defendant or order that service be made within a
specified time. Id. The court is ordering plaintiff to effectuate

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service by October 21, 2011.
If plaintiff seeks to serve process in accordance with the
laws

of

Massachusetts,

including

M.G.L.

c.

223,

§37,

it

is

plaintiff's burden to furnish this court with all the information
necessary to do so. See Local Rules of the United States District
Court for the District Court of Massachusetts 4.1(C).
As defendant has not yet received notice of this case,
plaintiff's Motion for Preliminary Injunction is being denied
without prejudice. See Fed. R. Civ. P. 65(a)(1). As defendant has
also not been served, plaintiff's Request for Entry of Default is
being denied. See Fed. R. Civ. P. 55.
Accordingly, it is hereby ORDERED that:
1. Plaintiff's Motion Seeking Declaration of Effective Service
(Docket No. 12) is DENIED.
2. The time for service is EXTENDED until October 21, 2011. If
a proper Return of Service is not filed by that date, the case will
be dismissed. See Fed. R. Civ. P. 4(m).
3. Plaintiff's Motion for Preliminary Injunction (Docket No.
4) is DENIED without prejudice.
4. Plaintiff's Request for Entry of Default (Docket No 16) is
DENIED.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE
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