Best v. Mobile Streams, Inc. et al

Filing 156

ORDER adopting Report and Recommendation 136 . Plaintiff's claims against defendants Mobile Streams, PLC and Christian Kwol-Leun Yau Heilesen are dismissed without prejudice. Signed by Judge Sandra S Beckwith on 3/11/14. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Blake Best,
Plaintiff,
vs.
Mobile Streams, Inc., et al.,
Defendants.

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Case No. 1:12-cv-564

ORDER
On January 13, 2014, the Magistrate Judge issued an Order, Report and
Recommendation (Doc. 136). The Magistrate Judge recommended that Plaintiff’s
claims against defendants Mobile Streams, PLC, and Christian Kwok-Leun Yau
Heilesen be dismissed for failure to show good cause for not timely effecting proper
service upon these defendants. Plaintiff objected to the recommendations (Doc. 137),
and also filed supplemental objections concerning the dismissal of unnamed Doe
defendants. (Doc. 147)
Mobile Streams, PLC was named in Plaintiff’s original complaint filed on August
16, 2012. (Doc. 6) A summons was issued and sent to the U.S. Marshal, as Plaintiff
was granted leave to proceed in forma pauperis. The August 16 summons was
addressed to Mobile Streams, PLC at 26B Northbrook Street, Newbury, Berkshire RG
14, 1 DJ, United Kingdom. (Doc. 7) Plaintiff subsequently filed a motion to reissue a
summons to Mobile Streams, PLC, with an address of Abacus House, 33 Gutter Lane,
London, EC2V 8AR, United Kingdom. (Doc. 13) On November 6, 2012, the original
summons (issued to the Northbrook Street address) was returned unexecuted by the

U.S. Marshal’s office, which stated that the USMS Cincinnati cannot serve foreign
process, and directing Plaintiff to contact the Washington, D.C. office. (Doc. 30)
On November 30, 2012, before any of the defendants had responded to the
original complaint, Plaintiff filed a first amended complaint. (Doc. 46) There, Plaintiff
alleged that Mobile Streams, PLC is a public limited company organized under United
Kingdom law, with its principal place of business at the Abacus House address in
London. The first amended complaint added claims against a new defendant, Christian
Kwok-Leun Yau Heilesen, alleging that he is the founder and CEO of Funmobile, Ltd.,
and that his address is 29/F, One Kowloon No. 1, Wang Yuen Street, Kowloon Bay,
Hong Kong. A summons was also reissued to Mobile Streams, PLC on December 18,
at the Abacus House, London address. (Doc. 63) The same day, the Clerk of Court
filed a certificate attesting that, at Plaintiff’s request, she sent the Ohio Secretary of
State, by certified mail, the First Amended Complaint and the reissued summons to
Mobile Streams, PLC. (Doc. 65)
On December 20, 2012, a summons was issued to Heilesen at Incorporating
Services, Ltd., 3500 South Dupont Highway, Dover, Delaware 19901. (Doc. 67) That
address was not listed in the First Amended Complaint for Mr. Heilesen; Plaintiff alleged
that another defendant (MobileFunster, Inc.) “has appointed Incorporating Services” and
listing that Delaware address. (See Doc. 46 at p. 4) The Clerk mailed the summons and
Plaintiff’s amended complaint by certified mail to Heilesen at that address the same day.
(Doc. 68) On December 28, 2012, the Heilesen summons sent to Incorporating
Services in Delaware was returned executed, signed for by “Salli Saunders” on
December 24, 2012. (Doc. 77) On January 23, 2013, the summons that was reissued
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to Mobile Streams, PLC at the Abacus House address was returned unexecuted, with a
Royal Mail notation that the addressee was “unknown.” (Doc. 87)
Plaintiff was granted leave to file a Second Amended Complaint on March 12,
2013. (Doc. 93) And on December 17, 2013, the Magistrate Judge issued an Order to
Show Cause, directing Plaintiff to explain why his claims against Mobile Streams, PLC
and Heilesen (and numerous unidentified “Doe” defendants) should not be dismissed
for failure of service. (Doc. 128) Plaintiff responded on December 27 (Doc. 130), and
filed an amended response on January 10, 2014. (Doc. 133) He argued that he
attempted to serve Mobile Streams, PLC by certified mail without success, and that his
service on the Ohio Secretary of State in December 2012 was legally sufficient.
Regarding Mr. Heilesen, Plaintiff alleged that Heilesen is “affiliated” with many
companies (such as defendant MobileFunster, Inc.), and that his “agent” (Salli
Saunders) received the summons on Heilesen’s behalf. Regarding the “Doe”
defendants, Plaintiff claimed that he needed discovery from certain internet service
providers in order to determine their identities.
In her Report and Recommendation (Doc. 136), the Magistrate Judge observed
that Plaintiff has done nothing since December 18, 2012 to locate a proper service
address for Mobile Streams, PLC, or to secure proper service on that entity. The
summons issued to the Abacus House address was returned and the Royal Mail stamp
indicated that the company was not known at that address (see Doc. 87). With regard
to defendant Heilesen, the Magistrate Judge found that Plaintiff has no evidence to
support his argument that Salli Saunders is a registered agent for Heilesen individually.
And Plaintiff has not attempted to serve Heilesen at the Hong Kong address. In her
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order, the Magistrate Judge also granted Plaintiff leave to file a Third Amended
Complaint to substitute AT&T, Inc., and AT&T Mobility for Does 1 and 2, and did not
dismiss the other Doe defendants, based on Plaintiff’s representation that he needs
discovery in order to identify them.
Plaintiff’s objections to the Magistrate Judge’s recommendations repeat many of
the arguments he presented in his response to the Magistrate Judge’s order to show
cause. With regard to Mobile Streams, PLC, Plaintiff contends that actual service or
proof of service is not required, and suggests that the company is evading service. He
attached unauthenticated screen prints from Mobile Streams’ website which list its
business address at the Abacus House address. He submits what appears to be the
front page of Mobile Streams, PLC’s financial statements for the period ending June 30,
2013, listing its UK registration number and the Abacus House address as its
“Registered address.” He submits a screen print apparently from a London Stock
Exchange website listing the company’s mailing and website addresses. (Doc. 137, Ex.
A) He also argues that it is the responsibility of the U.S. Marshal to effect service, and
cites his attempted service on Mobile Streams, PLC through the Ohio Secretary of
State’s office.
ANALYSIS
Federal Rule of Civil Procedure 4(m) states that if a plaintiff fails to effect service
upon a defendant within 120 days of the filing of the complaint, the Court must dismiss
the action without prejudice against that defendant, or order that service be made within
a certain time. If the plaintiff shows good cause for the lack of service, the Court must
extend the time for “an appropriate period.” The Rule’s time limits do not apply to
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service on an individual in a foreign country under Rule 4(f), but this exception does not
give a plaintiff an unlimited time in which to effect service. The Magistrate Judge
observed that the pertinent inquiry under Rule 4(m) is whether or not the Plaintiff has
taken “reasonable steps” to facilitate service on these defendants.
(1) Mobile Streams, PLC: The Magistrate Judge concluded that Plaintiff has not
shown good cause regarding this entity, because he has taken no action since
December 18, 2012 to attempt service. The Court agrees with this conclusion. First,
the Court rejects Plaintiff’s reliance on mailing a copy of the summons and complaint to
the Ohio Secretary of State. The statute that Plaintiff cites clearly provides that the
Secretary of State is a designated agent for service of process only for foreign
corporations that are required to be licensed under Section 1703.01 to 1703.31 of the
Ohio Revised Code, and which transact business in this state without obtaining the
required license. See Ohio Rev. Code 1703.191. Plaintiff’s complaint alleges that
Mobile Streams, PLC maintains mobile distribution systems that are “accessible” to
Ohio residents. But this allegation does not establish that the company is required to be
licensed by the state in order to maintain those systems.
Second, it is clear that mail service on Mobile Streams, PLC has not been
effected. Plaintiff was informed by the U.S. Marshal’s office in Cincinnati that it could
not serve process in a foreign country, and Plaintiff has not demonstrated that he made
any attempt to followup on that information. Plaintiff did not take any other steps to
attempt service and has not sought an order permitting some sort of alternate service.
Plaintiff has produced some evidence, although not authenticated, that the address
listed on the summons for Mobile Streams, PLC is an address that was used by the
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company at one time. But simply speculating that the company may be attempting to
evade service is not a sufficient basis upon which the Court could reach that conclusion.
The Court recognizes that Plaintiff is proceeding pro se, but even pro se litigants have
an obligation to comply with the basic requirements of service of process.

(2) Mr.

Heilesen: In his objections, Plaintiff relies on the return that was signed by “Salli
Sanders” in Delaware to argue that he has properly served Mr. Heilesen. He contends
that because Heilesen is allegedly an officer of Funmobile, Ltd. and/or of MobileFunster,
Inc., who were formerly represented by counsel in this case, service on the corporate
agent is sufficient to serve an individual officer named as a defendant. He also
suggests that service on Heilesen in Delaware is less burdensome than attempting to
serve him in Hong Kong (a tacit admission that Plaintiff has not attempted to serve
Heilesen at the address given in the complaint, where Heilesen works and lives). But
Plaintiff has absolutely no evidence to support his assertion that Ms. Sanders is a
registered or official agent for Mr. Heilesen, or that Ms. Sanders is authorized to accept
service of process on his behalf. The Court agrees with the Magistrate Judge’s
recommendations regarding Mr. Heilesen.
For all of the foregoing reasons, Plaintiff’s claims against defendants Mobile
Streams, PLC and Christian Kwol-Leun Yau Heilesen are hereby dismissed without
prejudice, for failure to properly serve these defendants.
SO ORDERED.
DATED: March 11, 2014

s/Sandra S. Beckwith
Sandra S. Beckwith, Senior Judge
United States District Court

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