FenF, LLC v. Ritacco

Filing 10

ORDER Denying 6 Motion for Substitute Service - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FENF, LLC,
Plaintiff,

CIVIL ACTION NO. 16-cv-11097

v.

DISTRICT JUDGE ARTHUR J. TARNOW

VIRGINIA A. RITACCO d/b/a
RITYLAND, INC.,

MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant.
_____________________________/

OPINION AND ORDER DENYING PLAINTIFF’S MOTION
FOR SUBSTITUTE SERVICE [6]
This matter is before the Court on Plaintiff FenF, LLC’s Motion for Substitute Service.
(Docket no. 6.) Plaintiff has also filed a Declaration in support of the Motion. (Docket no. 7.)
The Motion was referred to the undersigned for determination. (Docket no. 8.) The Court has
reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of
Michigan Local Rule 7.1(f)(2).

The Court is now ready to rule pursuant to 28 U.S.C. §

636(b)(1)(A).
I.

BACKGROUND
Plaintiff holds two patents for a foot therapy product known as “YogaToes GEMS,”

which Plaintiff sells through its own website and other online retailers. (Docket no. 1 ¶¶ 8, 1112.) Users put their toes between four elastic posts that are topped by a “faceted gemstone
handle.” (Id. ¶ 9.) According to Plaintiff, after observing the success of YogaToes GEMS,
Defendant began selling an identical version of the product through Amazon.com (“Amazon”)
under the business name Rityland, Inc. (Id. ¶ 17.) Plaintiff filed suit against Defendant on

March 25, 2016, alleging patent infringement and infringement of Plaintiff’s trade dress rights.
(Docket no. 1.)
The Motion (docket no. 6) and Declaration (docket no. 7) detail Plaintiff’s efforts to serve
Defendant with the Summons and Complaint.

Plaintiff began by contacting Amazon.

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representative of Amazon refused to provide a physical address, but informed Plaintiff that the
person operating Rityland, Inc. is named Virginia Ritacco, and that her email address is
[e-mail]. (Docket no. 7-4.) Plaintiff searched public records for “Virginia Ritacco”
and “[e-mail],” and discovered that a person named Virginia Ritacco is the
managing member of Green Communications LLC (“Green Communications”), which is based
in Florida and is not a party to this lawsuit. (Docket no. 7 ¶¶ 7-8.) Plaintiff searched the Florida
Secretary of State’s records for addresses associated with Green Communications. The articles
of organization list both the mailing address and physical address as: 7801 NW 37th Street, Suite
LP-104, Miami, FL 33166. (Docket no. 7-5.) Virginia Ritacco is listed as a managing member
at the same address. (Id.)
Plaintiff then located the 2015 Annual Report for Green Communications. (Docket no.
7-6.) In that document, both the mailing address and physical address for the business are listed
as: 12525 Orange Drive, Suite 612, Davie, FL 33330. The registered agent is identified as
Gustavo A. Viera, located at 15715 S. Dixie Highway 409, Miami FL 33157. Virginia Ritacco is
still listed as a managing member at the 7801 NW 37th Street address. (Id.)
Plaintiff hired process servers who attempted to serve Defendant personally at the 7801
NW 37th Street address and the 12525 Orange Drive address. (Docket no. 6 at 8.) The 7801
NW 37th Street location was occupied by a business called Ibelsoft; an employee on site
informed the process server that no one by the name of Virginia Ritacco worked there. (Docket

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no. 7-7.) The 12525 Orange Drive address turned out to be a mailing address only; an employee
at the leasing office informed the process server that Green Communications was a virtual client
and did not have a physical presence there. (Docket no. 7-8.) Plaintiff apparently did not
attempt to serve Defendant at the 15715 S. Dixie Highway address.
Asserting that it has “now exhausted its ability to physically locate Virginia Ritacco”
(docket no. 6 at 8), Plaintiff seeks an order from this Court allowing service of the Summons and
Complaint on Defendant by email to [e-mail] and/or on the registered agent of
Green Communications.1 (Docket no. 6 at 12.)
II.

GOVERNING LAW
Federal Rule of Civil Procedure 4(e)(1) provides that “[u]nless federal law provides

otherwise, an individual . . . 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.” Michigan Court Rule
2.105 covers service of process, and, for individuals, generally provides for personal service or
service by registered or certified mail. See M.C.R. 2.105(A). Michigan Court Rule 2.105(I),
however, provides:
(1) On a showing that service of process cannot reasonably be made as provided
by this rule, the court may by order permit service of process to be made in any
other manner reasonably calculated to give the defendant actual notice of the
proceedings and an opportunity to be heard.
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Plaintiff’s request for relief actually states:
FenF requests substitute service of its complaint to Virginia A. Ritacco d/b/a Rityland,
Inc., specifically service via e-mail, . . . as well as service on the registered agent of Green
Communications LLC.
Alternatively, or in addition, FenF requests to serve Virginia Ritacco through the resident
agent of Green Communications LLC . . . .

(Docket no. 6 at 12 (emphasis added).) There is no resident agent identified on the Florida Secretary of State’s
records. (See Docket nos. 7-5 & 7-6.) The Court interprets Plaintiff’s request as seeking substitute service by email,
through the registered agent (which is identified on the Florida Secretary of State records), or both.
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(2) A request for an order under the rule must be made in a verified motion dated
not more than 14 days before it is filed. A motion must set forth sufficient facts to
show that process cannot be served under this rule and must state the defendant’s
address or last known address, or that no address of the defendant is known. If
the name or present address of the defendant is unknown, the moving party must
set forth facts showing diligent inquiry to ascertain it. A hearing on the motion is
not required unless the court so directs.
(3) Service of process may not be made under this subrule before entry of the
court’s order permitting it.
As set forth in subpart (1), Plaintiff must show that the proposed alternative method of
service meets the constitutional standards for due process. See Mullane v. Cent. Hanover Bank
& Trust Co., 339 U.S. 306, 314 (1950) (citations omitted) (“An elementary and fundamental
requirement of due process in any proceeding which is to be accorded finality is notice
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.”). The rule also requires
Plaintiff to show that service by one of the methods listed in the rule could not be achieved
despite Plaintiff’s “diligent inquiry” into Defendant’s address. M.C.R. 2.105(I)(1), (2).
III.

ANALYSIS
The Court finds that Plaintiff has failed to show that either of its proposed methods of

substitute service are reasonably calculated to give the defendant actual notice of the proceedings
and an opportunity to be heard. M.C.R. 2.105(I)(1). The Court further finds that Plaintiff failed
to make a “diligent inquiry” to determine Defendant’s address, and therefore cannot show that
service under M.C.R. 2.105(A) is impossible. M.C.R. 2.105(I)(2). For these reasons, the Court
will deny the Motion.
1.

Service by Email

The Court acknowledges that some federal courts, including the Eastern District of
Michigan, have allowed service by email, particularly where the party to be served conducts its
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business on the Internet. See McCluskey v. Belford High School, No. 2:09-14345, 2010 WL
2696599, at *3 (E.D. Mich. June 24, 2010) (citing cases). In these cases (including both cases
cited by Plaintiff), however, the movant demonstrated that the email address in question was
valid. In McCluskey, cited by Plaintiff, the movants provided “declarations from individuals
confirming that they received emails” from the address. Id. The movants also used email
tracking software to establish that emails sent to the address were received and opened by the
defendants. Id. at *3-4 (court relied in part on Defendants’ “actual communications” with the
plaintiffs using the email address). Indeed, the court rejected the movants’ request to use a
second email address which had not been “sufficiently tested.” Id. at *4.
In Elcometer, Inc. v. TQC-USA, Inc., No. 12-cv-14628, 2013 WL 592660, at *3 (E.D.
Mich. Feb. 14, 2013), the other case Plaintiff cites in support of its position, the court relied on
the fact that the defendant responded to an email sent by counsel for the plaintiff, and that other
emails sent to the defendant were not returned as undeliverable. See also Rio Props., Inc. v. Rio
Int’l Interlink, 284 F.3d 1007, 1013, 1018 (9th Cir. 2002) (finding service by email and other
alternative means satisfied due process requirements where defendant undisputedly received
notice of suit through its “international courier” and where a private investigator learned that
defendant “preferred communication through its email address”); Gaffigan v. Does 1-10, 689 F.
Supp. 2d 1332, 1342 (S.D. Fla. 2010) (“The undersigned finds that Plaintiffs . . . have provided
sufficient notice to Defendants through the emails that did not bounce back. The undersigned
finds that the emails that did not bounce back were presumptively sent to valid email addresses
that reached Defendants.”); Chanel, Inc. v. Song Xu, No. 2:09-cv-02610, 2010 WL 396357, at
*2-4 (W.D. Tenn. Jan. 27, 2010) (service by email held to satisfy requirements of due process
where investigator received a “‘Return Receipt’ for each of the emails, which demonstrated the

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precise date and time of the receipt of each email”); Popular Enters., LLC v. Webcom Media
Grp., Inc., 225 F.R.D. 560, 562-63 (E.D. Tenn. 2004) (allowing service by email for
international corporation where plaintiff showed that emails sent to address proposed for service
did not “bounce back”); Broadfoot v. Diaz (In re Int’l Telemedia Assocs., Inc.), 245 B.R. 713,
718-21 (Bankr. N.D. Ga. 2000) (service by email and fax held to meet requirements of due
process where defendant himself provided trustee with email address and fax number).
In this case, Amazon provided the email address to Plaintiff as contact information for
Defendant, and Plaintiff apparently has never attempted to use the address to contact Defendant,
nor has Plaintiff attempted to identify and contact any Rityland, Inc. customers who may have
successfully communicated with Defendant using the address. In short, the email address has not
been “sufficiently tested” to satisfy the requirements of Michigan Court Rule 2.105(I)(1) or due
process. See McCluskey v. Belford High School, No. 2:09-14345, 2010 WL 2696599, at *4
(E.D. Mich. June 24, 2010).
2.

Service on the Registered Agent of Green Communications

Plaintiff has also failed to show that service on the registered agent for Green
Communications is reasonably calculated to give Defendant actual notice of the proceedings.
Green Communications is not a party to this lawsuit. There is no proof that the Virginia Ritacco
listed as the managing member of Green Communications in the Florida Secretary of State’s
records is the same Virginia Ritacco identified by Amazon, nor is there any obvious connection
between Green Communications and Rityland, Inc. The articles of organization list the purpose
of Green Communications as “Business communication services as well as any and all lawful
business” (see docket no. 7-5), with no mention of online retail activities.

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3.

Diligent Inquiry

A motion filed under Michigan Court Rule 2.105(I) must also “set forth sufficient facts to
show that process cannot be served under this rule and . . . [i]f the name or present address of the
defendant is unknown, the moving party must set forth facts showing diligent inquiry to ascertain
it.” See M.C.R. 2.105(I)(2). Plaintiff’s efforts to locate Defendant consist of emailing Amazon,
searching public records for “Virginia Ritacco” and “[e-mail],” and sending process
servers to two of the three addresses listed on the Florida Secretary of State’s records for Green
Communications. (Docket no. 6 at 7-8).
This is a close case, but the Court finds these efforts insufficient to meet the standard in
M.C.R. 2.105(I). “‘A truly diligent search for an absentee defendant is absolutely necessary to
supply a fair foundation for and legitimacy to the ordering of substituted service.’” J&J Sports
Prods., Inc. v. LB Entm’t, Inc., No. 14-cv-12236, 2014 WL 4987467, at *2 (E.D. Mich. Oct. 7,
2014) (quoting Krueger v. Williams, 300 N.W.2d 910, 919 (Mich. 1981)). Plaintiff does not
specify what public records it searched, nor does it explain why it did not attempt to locate
Defendant at the third address listed for Green Communications in the Florida Secretary of
State’s records. Finally, Plaintiff offers no explanation for its apparent failure to attempt to
contact Defendant at the email address provided by Amazon. See, e.g., Elcometer, Inc. v. TQCUSA, Inc., No. 12-cv-14628, 2013 WL 592660, at *1 (E.D. Mich. Feb. 14, 2013) (plaintiff
requested waiver of service by email).
The Court acknowledges that Plaintiff has made some effort to locate Defendant, and that
the online nature of Defendant’s business may make it difficult to serve Plaintiff by the methods
specifically listed in Michigan Court Rule 2.105, or Federal Rule of Civil Procedure 4.
Nevertheless, the Court is not convinced that resort to service by an unverified email address and

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on the registered agent of a non-party LLC (of which Defendant may not even be a member) is
necessary on the record as presented in the Motion.
III.

CONCLUSION
The Court concludes that Plaintiff has failed to show that its proposed methods for

substitute or alternate service are reasonably calculated to provide Defendant with actual notice
of the proceedings and an opportunity to be heard. M.C.R. 2.105(I)(1). The Court further
concludes that Plaintiff has failed to show that it made a “diligent inquiry” into Defendant’s
address to support a finding that Defendant cannot be served personally or through registered or
certified mail.

M.C.R. 2.105(I)(2).

The Court will therefore deny Plaintiff’s Motion for

Substitute Service (docket no. 6) without prejudice.
IT IS THEREFORE ORDERED that Plaintiff FenF, LLC’s Motion for Substitute
Service [6] is DENIED without prejudice.

NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date
of this Order within which to file any written appeal to the District Judge as may be permissible
under 28 U.S.C. § 636(b)(1).

Dated: September 22, 2016

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE
PROOF OF SERVICE

I hereby certify that a copy of this Opinion and Order was served upon counsel of record
on this date.
Dated: September 22, 2016

s/ Lisa C. Bartlett
Case Manager
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