MALIBU MEDIA, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 73.160.8.108
Filing
21
OPINION filed. Signed by Judge Anne E. Thompson on 5/12/2016. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MALIBU MEDIA, LLC,
Plaintiff,
Civ. No. 15-6735
v.
JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 73.160.8.108,
OPINION
Defendant.
THOMPSON, U.S.D.J.
INTRODUCTION
This matter comes before the Court by way of Defendant Rohith Surampudi’s
(“Defendant”) motion to dismiss for insufficient service of process. (ECF No. 16). Plaintiff
Malibu Media, LLC (“Plaintiff”) opposes. (ECF No. 20). The Court has decided the motions
based on the written submissions of the parties and without oral argument pursuant to Local
Civil Rule 78.1(b). For the reasons stated herein, Defendant’s motion will be denied.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(5) permits a court to dismiss a case for insufficient
service of process. “The party asserting the validity of service bears the burden of proof on that
issue.” Grand Entm’t Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993).
DISCUSSION
Plaintiff hired a process server to serve Defendant. The process server declared under
penalty of perjury that he left copies of the summons and complaint with Defendant’s father at
Defendant’s home. (ECF No. 15). This service was timely per the extension granted to Plaintiff
1
by Magistrate Judge Douglas E. Arpert. (ECF No. 14). Defendant submitted an affidavit from
his father, Prasad Surampudi, stating that “a person knocked on my front door, and when I
opened the door, they asked if I was authorized to accept service of process on behalf of my son,
Rohith Surampudi. I responded in the negative, and the person turned around, and walked away
from my door.” (ECF No. 16-2). Defendant’s father states that he was never handed any papers
or legal documents. (Id.).
“For a party to rebut valid service accompanied by an affidavit, it must submit sufficient
evidence to do so, and may not rely merely on statements by interested parties.” Ramada
Worldwide Inc. v. Shriji Krupa, LLC, No. 07-2726, 2013 WL 1903295, at *3 (D.N.J. Apr. 17,
2013), report and recommendation adopted, No. 07-2726, 2013 WL 1903293 (D.N.J. May 7,
2013). Affidavits from immediate family members that solely deny service occurred are
insufficient to rebut a sworn statement from a disinterested third party such as a professional
process server. See Noske v. Dicaterino Contracting, Inc., No. 92-4153, 1994 WL 386850, at
*4-5 (D.N.J. July 19, 1994) (holding that a defendant’s wife’s affidavit denying service occurred
is insufficient to rebut a process server’s affidavit); Constitution Bank v. Painewebber Inc., No.
91-5175, 1992 WL 50103, at *3 (E.D. Pa. Feb. 28, 1992) (holding that “evidence from a family
member alleging improper service under the rules” is insufficient to rebut a process server’s
sworn account of proper service). The affidavit from Defendant’s father is therefore insufficient
to rebut the sworn statement of Plaintiff’s process server, which correctly identified Defendant’s
father by name and his relationship to Defendant, further suggesting that the process server’s
account was credible. (ECF No. 15). Since service otherwise appears to be proper under Federal
Rule of Civil Procedure 4, Defendant’s motion will be denied.
2
CONCLUSION
For the foregoing reasons, Defendant’s motion will be denied. An order consistent with
this opinion will follow.
/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
Date: May 12, 2016
3
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?