Wayfair LLC v. The Furniture Authority, LLC

Filing 11

Judge F. Dennis Saylor, IV: ORDER ON SERVICE OF PROCESS entered. Plaintiff's 9 motion to consider summons and complaint served or for alternate service of process is GRANTED in part and DENIED in part. (Cicolini, Pietro).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
WAYFAIR, LLC,
)
)
Plaintiff,
)
)
Civil Action No.
v.
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12-12155-FDS
)
THE FURNITURE AUTHORITY, LLC,
)
)
Defendant.
)
)

ORDER ON
SERVICE OF PROCESS
SAYLOR, J.
This is an action for trademark infringement in the retail furniture industry. Plaintiff
Wayfair, LLC reports that it has thus far been unsuccessful in serving the summons and
complaint on defendant The Furniture Authority, LLC. Wayfair is a Delaware limited liability
company with its principal place of business in Massachusetts. The Furniture Authority is a
New Jersey limited liability company with its principal place of business in New Jersey.
On December 20, 2012, Wayfair moved for this Court to deem the summons and
complaint as having been served and order that The Furniture Authority respond to the complaint
within 21 days or otherwise order an alternative means of service. For the reasons set forth
below, the Court will order that the summons and complaint be served by way of first-class mail
and leaving a copy of the documents at defendant’s place of business.
Rule 4(h)(1) of the Federal Rules of Civil Procedure provides that a partnership or other
unincorporated association may be served, among other ways, in the manner prescribed in Rule

4(e)(1) for serving an individual. Rule 4(e)(1) provides that such a defendant may be served “in
a judicial district of the United States by 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.” Fed. R. Civ. P. 4(e)(1). Rule 4 of the Massachusetts Rules of Civil Procedure,
in turn, provides that, when attempting to serve an unincorporated association, “[i]f the person
authorized to serve process makes return that after diligent search he can find no person upon
whom service can be made, the court may on application of the plaintiff issue an order of notice
in the manner and form prescribed by law.” Mass. R. Civ. P. 4(d)(2).1 Finally, Mass. Gen. Laws
ch. 227, § 7 provides that, in such a situation, “notice of the action is given in such manner as
[the court] may order.”
This Court appears to be without power to grant plaintiff the entirety of the relief it seeks
and simply deem the complaint and summons to have been served. However, the Court does
have the power to order an alternative means of service upon a motion by plaintiff and a showing
that a diligent search was undertaken to find a person upon whom service can be made. The
Court interprets plaintiff’s present motion as requesting such an order and also finds that it
includes within it an adequate showing that a diligent search was undertaken but was
unsuccessful.
Accordingly, the Court orders that the plaintiff serve the summons, the complaint, and a

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Mass. R. Civ. P. 4(e) provides that “[w]hen any statute or law of the Commonwealth authorizes service of
process outside the Commonwealth, the service shall be made by delivering a copy of the summons and of the
complaint: (1) in any appropriate manner prescribed in subdivision (d) of this Rule; or (2) in the manner prescribed
by the law of the place in which the service is made for service in that place in an action in any of its courts of
general jurisdiction; or (3) by any form of mail addressed to the person to be served and requiring a signed receipt;
or (4) as directed by the appropriate foreign authority in response to a letter rogatory; or (5) as directed by order of
the court.”

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copy of this order on the defendant by the following means: (1) sending a copy of all three items
by first-class mail to defendant’s last-known address, and (2) leaving a copy of all three items at
defendants last-known place of business.

So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: January 15, 2013

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