J&J Sports Productions, Inc. v. Lava Entertainment Group LLC et al

Filing 11

MEMORANDUM Opinion and ORDER GRANTING IN PART AND DENYING IN PART 10 Motion to Substitute Service. Further Directives within Order. Signed by Judge David C Guaderrama. (mc4)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
J&J SPORTS PRODUCTIONS, INC., as
Broadcast Licensee of the September 14,
2013 The One Floyd Mayweather, Jr., v.
Saul Alvarez, WBC Light Middleweight
Championship Fight Program,

Plaintiff,
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LAVA ENTERTAINMENT GROUP
LLC, individually, and doing business as
Black Pearl Dance Club also known as
Black Pearl; DAVID ACOSTA,
individually, and doing business as Black
Pearl Dance Club also known as Black
Pearl also known as David A Acosta; Luz
EUGENIO GAONA, individually, and
doing business as Black Pearl Dance Club
also known as Black Pearl,
Defendants.

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EP-16-CV-00294-DCG

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MEMORANDUM OPINION AND ORDER
Presently before the Court is Plaintiff J&J Sports Productions, Inc.'s ("Plaintiff')
"Motion for Substitute Service" (ECF No. 10) ("Motion") filed on January 3, 2017. Therein,
Plaintiff asks the Court to authorize substitute service, pursuant to Federal Rule of Civil
Procedure 4(e)(1) and Texas Rule of Civil Procedure 106, on Defendant David Acosta
("Acosta"). For the reasons the follow, the Court GRANTS IN PART and DENIES IN PART
Plaintiffs Motion.

I. APPLICABLE LAW
Federal Rule of Civil Procedure 4(e)(1) provides, in pertinent part, for service of process
on a defendant residing within a judicial district by "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," as here, Texas. Fed. R. Civ. P. 4(e)(l). Texas Rule of Civil Procedure 106 authorizes
service (1) by personal delivery or (2) by registered or certified mail, return receipt requested.
Tex. R. Civ. P. 106(a)(l)-(2).
Texas law prefers personal service over substitute service, because of its greater
reliability. ELPMAXTCD, Corp. v. Kadow, No. 16-CV-00106, 2016 WL 5720858, at *1 (W.D.
Tex. Sept. 30, 2016) (citing Taylor v. State, 293 S.W.3d 913, 915-16 (Tex. App.-Austin 2009,
no pet.) and In re E.R., 385 S.W.3d 552, 564 (Tex. 2012)). Only after service by one of the two
methods provided in Rule 106(a) fails, may a court authorize, upon a motion supported by proper
affidavit, substitute service by leaving a copy of the service documents with anyone over sixteen
years of age or in any other manner deemed to be reasonably effective to give the defendant
notice. Tex. R. Civ. P. 106(b)(l)-(2); State Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298,
298-99 (Tex. 1993); Wilson v. Dunn, 800 S.W.2d 833, 834 (Tex. 1990). The affidavit must:
stat[e) the location of the defendant's usual place of business or usual place of
abode or other place where the defendant can probably be found and stat[e]
specifically the facts showing that service has been attempted under either (a)(l)
[personal delivery] or (a)(2) [registered or certified mail] at the location named in
such affidavit but has not been successful.
Tex. R. Civ. P. 106(b). The supporting affidavit must strictly comply with the requirements of
Rule 106(b). ELPMAX TCD, Corp., 2016 WL 5720858, at * 1 (citing Wilson v. Dunn, 800
S.W.2d 833, 836 (Tex. 1990) and Amato v. Hernandez, 981 S.W.2d 947, 949 (Tex. App.Houston [1st Dist.] 1998, no pet.).

II. DISCUSSION
Plaintiff states that several attempts were made to serve Acosta by personal delivery at
Defendant's usual place of abode or the place where the defendant could be found, but those

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attempts were not successful. See Mot. at 2. In support, Plaintiff has provided affidavits from
two process servers., According to the affidavits, two attempts were made to serve Acosta by
personal delivery at 1300 Calle Lago, El Paso, Texas 79912-an address listed in Plaintiffs
Complaint-but have not been successful. /d., Ex. A (Carolina Meza Aff.). In addition, multiple
attempts to serve Acosta by personal delivery at his work addresses-namely, 6006 N. Mesa,
Suite 110, El Paso, Texas 79912 ("Mesa Address") and 9000 W. Sunset Blvd.,# 1000, West
Hollywood, CA 90069 ("Sunset Blvd Address")-also have not been successful. Id, Exs. A, B.
The affidavits further indicate that Acosta typically is not found in El Paso, but works mostly out
of his office at the Sunset Blvd Address. Id, Exs. A, B.
Consequently, Plaintiff seeks authorization to serve Acosta:
by delivering a true copy of the (I) Summons; (2) Plaintiffs Original Complaint;
and (3) Plaintiffs Disclosure Statement and Certificate of Interested Persons to
anyone over eighteen years of age at 9000 W. Sunset Blvd., # I 000, West
Hollywood, CA 90069 OR at 6006 N. Mesa, Suite 110, El Paso, Texas 79912; or
securely attaching a true and correct copy of the (I) Summons; (2) Plaintiffs
Original Complaint; and (3) Plaintiffs Disclosure Statement and Certificate of
Interested Persons, to the front door at 9000 W. Sunset Blvd., # 1000, West
Hollywood, CA 90069 OR at 6006 N. Mesa, Suite 110, El Paso, Texas 79912.
Mot. at 3 (boldface and underline emphasis in original). Plaintiff avers that such service
is reasonably effective to give Acosta notice of the suit. Id
The Court is satisfied that the affidavits meet the requirements of Rule I 06(b) and finds
that substitute service should be authorized. However, the Court will modify the requested
methods of substitute service as delineated in the orders below.

III. CONCLUSION
For the foregoing reasons, the Court enters the following orders:

IT IS HEREBY ORDERED that Plaintiff J&J Sports Productions, Inc.'s
"Motion for Substitute Service" (ECF No. 10) is GRANTED IN PART and DENIED

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IN PART. The Motion is GRANTED as to Plaintiffs request for authorization for
substitute service, and DENIED as to Plaintiffs request for the precise methods of
substitute service.

IT IS FURTHER ORDERED that Plaintiff may serve Defendant David Acosta
by delivering a true copy of the (1) Summons; (2) Plaintiffs Original Complaint; (3)
Plaintiffs Disclosure Statement and Certificate of Interested Persons; and (4) this Order
to anyone over eighteen years of age at 9000 W. Sunset Blvd.,# 1000, West Hollywood,
CA 90069.

IT IS FURTHER ORDERED that if an attempt to serve by the above-mentioned
method fails, Plaintiff may serve Defendant David Acosta by delivering a true copy of
the (1) Summons; (2) Plaintiffs Original Complaint; (3) Plaintiffs Disclosure Statement
and Certificate of Interested Persons; and (4) this Order to anyone over eighteen years of
age at 6006 N. Mesa, Suite 110, El Paso, Texas 79912.

IT IS FURTHER ORDERED that if an attempt to serve by each of the abovementioned methods fails, Plaintiff may serve Defendant David Acosta by securely
attaching a true copy of the ( 1) Summons; (2) Plaintiffs Original Complaint; (3)
Plaintiffs Disclosure Statement and Certificate of Interested Persons; and (4) this Order
to the front door at 9000 W. Sunset Blvd.,# 1000, West Hollywood, CA 90069, and to
the front door at 6006 N. Mesa, Suite 110, El Paso, Texas 79912.

So ORDERED and SIGNED this

by

of March 2017.

DAVID C. G DERRAMA
UNITED STATES DISTRICT JUDGE

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