J & J Sports Productions, Inc. v. Tower et al
MEMORANDUM OPINION AND ORDER. IT IS HEREBY ORDERED that Defendant Tovar and Campis's motion to dismiss for improper service 51 is GRANTED. The claims asserted against Maximilliano Carrillo Tovar and Orlando Floris Campis are DISMISSED WITH PREJUDICE. (Written Opinion). Signed by Judge Michael J. Davis on 7/12/17. (GRR)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
J & J Sports Productions, Inc.,
Civil No. 14‐4134 (MJD/FLN)
Maximilliano Carrillo Tovar,
Orlando Floris Campis, and Agua
Brava Restaurant, LLC individually,
and d/b/a Agua Brava, and John DOES I‐V,
Kimberly M. Hanlon, Kimberly M. Hanlon, LLC, Counsel for Plaintiff.
Lora M. Friedemann and Katherine J. Ratlin, Fredrikson & Byron, P.A.,
Counsel for Defendants.
This matter is before the Court on Defendants Tovar and Campis’s motion
to dismiss the claims against them.
On October 2, 2014, Plaintiff filed this lawsuit, alleging that Defendants
unlawfully intercepted and exhibited the “Floyd Mayweather, Jr. v. Saul Alverez,
WBC Middleweight Championship Fight Program” (the “Program”) at Agua
Brava Restaurant. (Compl. ¶ 16.) These allegations are based upon the sworn
affidavit of investigator Francisco Ortiz, who contends that he entered Agua
Brava at 10:40 p.m. on September 14, 2013 and observed the unlawful
transmission at that time. (Hanlon Aff. at Exh. A [Doc. No. 20].) Citing this
investigation, Plaintiff alleged that Defendants were in direct violation of the
Federal Communications Act (“FCA”), 42 U.S.C. § 605, et seq. and the Cable &
Television Consumer Protection and Competition Act, 42 U.S.C. § 553, et seq.
Attempts to serve Tovar and Campis were made on January 21, 2015. (See
Doc. Nos. 8 and 9.) Agua Brava Restaurant, LLC was served on January 22, 2015.
(Doc. No. 10.) None of the defendants, or anyone acting on their behalf, filed an
Answer to the Amended Complaint within the time specified by Fed. R. Civ. P.
12(a)(1)(A). Accordingly, the Clerk entered default and Plaintiff moved for
default judgment pursuant to Fed. R. Civ. P. 55(b).
At the hearing on Plaintiff’s motion, Defendants Tovar and Campis
appeared pro se. The Court continued the hearing on Plaintiff’s motion and
directed the Defendants to work with the Pro Se Project to seek counsel.
Ultimately, they were able to obtain counsel through the Pro Se Project.
Thereafter, Defendants Tovar, Campis, and Agua Brava Restaurant, LLC
moved to set aside the Clerk’s entry of default, and asked the Court to deny
Plaintiff’s motion for default judgment on the basis that they have several
colorable defenses and that Plaintiff will not be prejudiced if the default is lifted
by the Court. (Doc. No. 38.) One such defense raised in this motion was failure
to properly serve Tovar and Campis. (Doc. No. 40 at 5.) Plaintiff did not oppose
this motion, and the default was set aside.
Defendants Tovar and Campis now move the Court to dismiss the claims
against them based on failure to state a claim and for insufficient service of
Failure to Properly Serve Defendants Tovar and Campis
Defendants Tovar and Campis assert they were not properly served with
the Summons and Complaint and move to dismiss the claims against them
pursuant to Fed. R. Civ. P. 12(b)(5), insufficient service of process. Properly
effected service is a fundamental element to any lawsuit, and a court lacks
jurisdiction over that defendant that has not been properly served. See Willis v.
Tarasen, 2005 WL 1705839, at *2 (D. Minn. July 11, 2005).
On a motion to dismiss brought under . . . 12(b)(5), insufficiency of process
of service, the plaintiff must establish prima facie evidence that there was
sufficient process and service of process. A prima facie case is “[t]he
establishment of a legally required rebuttable presumption” or where “[a]
partyʹs production of enough evidence [allows] the fact‐trier to infer the
fact at issue and rule in the partyʹs favor.”
Devin v. Schwanʹs Home Servs., Inc., No. CIV. 04‐4555 (RHK/AJB), 2005 WL
1323919, at *3 (D. Minn. May 20, 2005) (internal citations omitted).
An individual may be served process by “leaving a copy of the [summons
and complaint] at the individual’s dwelling or usual place of abode with
someone of suitable age and discretion who resides there.” Fed. R. Civ. P. 4
(e)(2)(B). Plaintiff asserts it has made a prima facie showing that Tovar and
Campis were properly served through the Affidavits of Service which show the
Summons and Amended Complaint were left with at their residences with
persons of suitable age and discretion residing therein. (Doc. Nos. 8 and 9.)
Defendant Tovar asserts that the Summons and Amended Complaint were
left with his daughter, Karen Carillo, at Tovar’s residence. As set forth in the
Tovar declaration, his daughter did not live at his residence at that time. (Tovar
Decl. ¶5.) Similarly, Plaintiff attempted to serve Campis by leaving the summons
and complaint with his daughter‐in‐law, Ali Deluna, at Campis’ residence. As
set forth in the Campis declaration, Ali Deluna did not reside at his residence at
the time she accepted service. (Campis Decl. ¶ 4.)
Plaintiff responds that an action should not be dismissed for lack of service
if the evidence, viewed in the light most favorable to plaintiff, is sufficient to
support a conclusion that service was proper. It is Plaintiff’s position that the
Court should only look to the sworn affidavits of the process server and those
affidavits constitute prima facie evidence of valid service. Plaintiff further argues
that to overcome the presumption that service was proper, the Court must hold
an evidentiary hearing so that counsel has the opportunity to cross examine the
statements of witnesses and for the Court to ascertain the credibility of the
witnesses. The Court rejects these arguments.
When addressing a motion to dismiss for lack of service, the Court
necessarily must review matters outside of the pleadings. Devin, 2005 WL
1323919, at *2 (citing 5B Wright & Miller, Federal Practice and Procedure: Civil §
1353 (3d. ed. 2004)). “Review of this evidence does not require converting the
motion to one for summary judgment.” Id. See also Seabrook v. Ind. School
Dist. 535, Civ. No. 16‐2245 (DSD/BRT), 2017 WL 685102 n. 6 (D. Minn. Feb. 21,
2017) (same); In re Mar‐Kay Plastics, Inc., 234 B.R. 473, 478 (W.D. Mo. Bankr.
1999) (same); Travelers Cas. & Sur. Co. of America v. Telstar Const. Co., Inc.., 252
F. Supp. 2d 917, 922 (D. Ariz. 2003) (same). Accordingly, the Court may take into
consideration the declarations of Tovar and Campis without converting the
motion to one for summary judgment and which would require an evidentiary
The Tovar and Campis declarations sufficiently rebut the presumption that
they were properly served. In response to this motion, Plaintiff did not present
any evidence to support its position that at the time of service, those persons that
accepted service resided at the residences of Tovar and Campis. Accordingly, the
Court finds that Tovar and Campis were not properly served, and that the claims
against them must be dismissed.
Fed. R. Civ. P. 4(m) provides the Court can dismiss an action without
prejudice if the defendant is not properly served within 90 days of the date the
Complaint was filed. The Court may also order the plaintiff to provide proper
service within a specified time period upon a showing of good cause. In this
case, Defendants assert that Plaintiff has failed to properly serve Tovar and
Campis, and that it has been two years since the Complaint was filed.
Defendants further assert they brought up the issue of improper service in their
motion to set aside default judgment, which was filed in December 2016, yet
Plaintiff has not taken any steps since that time to properly serve Tovar and
Defendants ask that the claims be dismissed with prejudice, as Plaintiff has
provided the Court no basis upon which to find that its failure to effect proper
service was excusable. Rule 4(m) provides that if Plaintiff demonstrates good
cause for its failure to properly serve Defendants, the Court must extend the
deadline for service. Kurka v. Iowa County Iowa, 628 F.3d 953, 957 (8th Cir.
2010). If Plaintiff fails to demonstrate good cause, the Court may still exercise
discretion and extend the deadline, but only upon a showing of excusable
neglect. Id. The Court should take into account the following factors to
determine whether Plaintiff has demonstrated excusable neglect: 1) the
possibility of prejudice to the defendant; 2) the length of the delay and the
potential impact on judicial proceedings; 3) the reason for the delay including
whether the delay was within the party’s reasonable control and 4) whether the
party acted in good faith. Id. at 959.
In its response to Defendants’ motion, Plaintiff did not argue it had good
cause for its improper service and has provided no evidence of excusable neglect.
The Court finds that Plaintiff has prejudiced Tovar and Campis as they have had
this suit pending against them for two and one half years, and despite being put
on notice that Tovar and Campis were asserting improper service over six
months ago, Plaintiff has done nothing to effect proper service or demonstrate to
the Court that service was proper. Under these circumstances, the Court finds
that dismissal of the claims against Tovar and Campis must be with prejudice.
IT IS HEREBY ORDERED that Defendant Tovar and Campis’s motion to
dismiss for improper service [Doc. No. 51] is GRANTED. The claims asserted
against Maximilliano Carrillo Tovar and Orlando Floris Campis are DISMISSED
Date: July 12, 2017
s/ Michael J. Davis
Michael J. Davis
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?