J & J Sports Productions, Incorporated v. Prime Hookah Lounge, Incorporated et al

Filing 10

ORDER Granting Plaintiff's 6 Motion for an Order Allowing Alternative Service Upon Defendants and for Extended Summons. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
J&J SPORTS PRODUCTION, INC.,
Plaintiff,

Case No. 17-cv-11313
Hon. Matthew F. Leitman

v.
PRIME HOOKAH LOUNGE, INC., et al.,
Defendants.
_________________________________/
ORDER GRANTING PLAINTIFF’S MOTION FOR AN ORDER
ALLOWING ALTERNATIVE SERVICE UPON DEFENDANTS
AND FOR EXTENDED SUMMONS (ECF #6)
On April 25, 2017, Plaintiff J&J Sports Production, Inc. filed this action
against Defendants Prime Hookah Lounge, Inc., Stavros Toma, and Brian Toma.
(See Compl., ECF #1.) J&J alleges that Defendants Stavros and Brian Toma are the
owners of Prime Hookah Lounge, Inc., and that the Defendants unlawfully broadcast
a Floyd Mayweather, Jr. closed-circuit boxing match without paying J&J for the
rights to do so. (See id. at ¶¶ 10, 15, Pg. ID 3-5.) The Court issued summonses for
the Defendants on April 26, 2017.
J&J’s attempts to serve the Defendants have been unsuccessful. On July 24,
2017, J&J filed a verified “Ex Parte Motion for an Order Allowing Alternative
Services Upon Defendants and for Extended Summons.” (See ECF #6.) In that
motion, J&J explained that it has repeatedly attempted to serve Defendants with the
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summons and Complaint, but it has been able to do so. In support of the motion,
J&J submitted three affidavits from its process server, Mark Hubert. (See id. at Pg.
ID 24, 26, and 28.) In these affidavits, Mr. Hubert swore under oath that he
attempted to serve each Defendant in the following manners:
 On May 7, 2017, Mr. Hubert attempted to serve Stavros Toma and
Brian Toma at the registered office address for Prime Hookah Lounge,
Inc. Neither Defendant was at the location and Mr. Hubert left his
business card. (See id. at Pg. ID 24, 26.)
 On May 7, 2017, Mr. Hubert attempted to serve Prime Hookah Lounge,
Inc. at the last known address for the lounge.

The location was

“vacant.” (Id. at Pg. ID 28.)
 On May 10, 2017, Mr. Hubert attempted to serve Stavros Toma and
Brian Toma at the registered office address for Prime Hookah Lounge,
Inc. The office was closed. (See id. at Pg. ID 24, 26.)
 On May 15, 2017, Mr. Hubert attempted to serve Stavros Toma and
Brian Toma at the registered office address for Prime Hookah Lounge,
Inc. A male at the location told Mr. Hubert that neither Stavros nor
Brian were present. (See id. at Pg. ID 24, 26.)
 On May 17, 2017, Mr. Hubert attempted to serve Stavros Toma and
Brian Toma at the registered office address for Prime Hookah Lounge,
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Inc. A male at the location told Mr. Hubert that neither Stavros nor
Brian were present. (See id. at Pg. ID 24, 26.)
After J&J filed this motion, it hired Mr. Hubert to attempt to serve the
Defendants at different addresses, including the residences of Stavros and Brian
Toma. Mr. Hubert has since submitted additional affidavits in which he swore under
oath that those efforts were also unsuccessful. (See ECF ## 7-9.) In these affidavits,
Mr. Hubert averred that:
 On June 16, 2017, June 18, 2017, June 27, 2017, and July 2, 2017, he
attempted to serve Stavros Toma at his residence.

Mr. Hubert

“confirmed with neighbors” that Stavros lived at the residence, but
either nobody answered the door at the residence or Mr. Hubert was
told Stavros was not home. (ECF #7 at Pg. ID 91.)
 On June 16, 2017, June 18, 2017, June 30, 2017, and July 3, 2017, he
attempted to serve Brian Toma at his residence. Mr. Hubert “spoke
with neighbors who confirmed that [Brian] lived” at the residence.
Nobody answered the door for Mr. Hubert even though cars were in the
driveway and it “sound[ed] like someone [was] inside.” (ECF #8 at Pg.
ID 93.)
 On June 16, 2017, June 18, 2017, June 30, 2017, and July 6, 2017, he
attempted to serve Prime Hookah Lounge, Inc. at the residence of Brian
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Toma. (See ECF #9 at Pg. ID 95.) J&J has presented evidence that
Brian Toma is the registered agent of the lounge. (See ECF #6 at Pg. ID
33.) Mr. Hubert’s attempts were unsuccessful. (See ECF #9 at Pg. ID
95.)
J&J now seeks the Court’s permission to complete service of the Defendants
through “a method or methods, which, in the court’s judgment, are reasonably
calculated to give [D]efendants actual notice of the proceedings and an opportunity
to be heard.” (ECF #6 at Pg. ID 24.)
Service of process on a domestic corporation is governed by Federal Rule of
Civil Procedure 4(h)(1). That rule provides in relevant part that
a domestic or foreign corporation … must be served ... in
a judicial district of the United States in the manner
prescribed by Rule 4(e)(1) for serving an individual; or by
delivering a copy of the summons and of the complaint to
an officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process and – if the agent is one authorized by statute and
the statute so requires – by also mailing a copy of each to
the defendant.
In turn, Rule 4(e)(1) governing service of an individual provides:
[A]n individual may be served in a judicial district of the
United States by following state law for serving a
summons in an action brought in the courts of general
jurisdiction in the state where the district court is located
or where service is made.

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Michigan Court Rule 2.105 governs service of process in the State of
Michigan. That rule provides in relevant part that process may be served on a
resident or non-resident individual by:
1. delivering a summons and a copy of the complaint to
the defendant personally; or
2. sending a summons and a copy of the complaint by
registered or certified mail, return receipt requested,
and delivery restricted to the addressee. Service is
made when the defendant acknowledges receipt of the
mail. A copy of the return receipt signed by the
defendant must be attached to proof showing service
under subrule (A)(2).
MCR 2.105(A)(1)-(2).
However, Michigan Court Rule 2.105(I) provides that alternate service may
be appropriate under some circumstances:
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.
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. The 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.
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3. Service of process may not be made under this subrule
before entry of the court's order permitting it.
MCR 2.105(I).
In Michigan, alternative service “is not an automatic right.” Krueger v.
Williams, 300 N.W.2d 910, 915 (Mich. 1981). “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.” Id. at 919.
Here, the Court concludes that J&J has satisfied the requirements for
alternative service under MCR 2.105(I) and Michigan law.

First, J&J has

sufficiently shown that service of the Defendants “cannot reasonably be made.”
MCR 2.105(I)(1). J&J’s process server has unsuccessfully attempted to serve the
individual Defendants eight times each at two different addresses, and the
corporation at two different addresses. And J&J has presented evidence, through the
affidavits of its process server, that suggests that the Defendants may be purposefully
evading service. Despite conducting what the Court believes was a “truly diligent
search,” Krueger, 300 N.W.2d at 919, J&J has been unsuccessful under the usual
methods of service.
Second, as required under MCR 2.105(2), J&J submitted a verified motion
that is dated within 14 days of filing, is supported by affidavits of the process-server

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Mr. Hubert and by J&J’s counsel, and includes the Defendants’ last known
addresses. (See ECF #6.)
Third, the Court believes that service of process by a combination of U.S. Mail
and leaving the summonses and three copies of the Complaint at the registered office
of Prime Hookah Lounge, Inc. is “reasonably calculated to give [Defendants] actual
notice of the proceedings and an opportunity to be heard.” MCR 2.105(I)(1).
In addition, the Court finds good cause to allow J&J an extension of time to
serve Defendants through the methods of substituted service described below. See
Fed. Rule Civ. Proc. 4(m). The Court will therefore extend the summonses for
Defendants by forty-five days from the date of this Order.
Accordingly, for all the reasons stated above, J&J’s ex parte motion for
alternative service (ECF #6) is GRANTED as follows: J&J shall serve each
Defendant with a copy of (1) a summons, (2) the Complaint, and (3) this Order as
follows:
 Leaving the summonses, three copies of the Complaint, and three
copies of this Order with the receptionist at the registered office
address of Prime Hookah Lounge, Inc., 46763 Hayes Rd., Shelby
Township, Michigan 48135, with instructions to deliver those
documents to the Defendants. If no receptionist is present, J&J may

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leave the summonses, Complaints, and Orders at the location with a
cover letter identifying the documents;
 Mailing a summons for Prime Hookah Lounge, Inc. and a summons
for Brian Toma individually, two copies of the Complaint, and two
copies of this Order via certified mail, return receipt requested to Brian
Toma at his last known residential address, 13243 Eagle Next Trial,
Shelby Township, Michigan 48315;
 Mailing a summons, Complaint, and this Order via certified mail,
return receipt requested to Stavros Toma at his last known residential
address, 47677 Milonas , Shelby Township, Michigan 48315; and
 Mailing the summonses, Complaint, and this Order to via first class
mail, in a plain white envelope with no return address, to (1) Prime
Hookah Lounge’s registered office address, (2) the residential address
of Brian Toma, and (3) the residential address of Stavros Toma.
J&J shall also file Certificates of Service with the Court after it serves
Defendants as directed in this Order.
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: October 6, 2017
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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on October 6, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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