Incentive Capital v. Camelot Entertainment Group et al

Filing 48

MEMORANDUM in Support re 47 MOTION to Quash service pursuant to Rule 12(b)(5) filed by Defendant Peter Jarowey. (Petty, Wayne)

UNITED STATES DISTRICT COURT
DISTICT OF UTAH, CENTRAL DIVISION

INCENTIVE CAPITAL, LLC, a Utah Limited
Liability Company,
Plaintiff,
v.
CAMELOT ENTERTAINMENT GROUP,
INC., a Delaware Corporation; CAMELOT
FILM GROUP, INC., a Nevada Corporation;
CAMELOT DISTRIBUTION GROUP, INC., a
Nevada Corporation; ROBERT P. ATWELL,
an individual; JAMIE R. THOMPSON, an
individual; STEVEN ISTOCK, an individual;
TED BAER, an individual; PETER
JAROWEY, an individual,

Civil No. 2:11-CV-00288
Judge Clark Waddoups

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF MOTION
BY DEFENDANT PETER JAROWEY FOR AN ORDER
QUASHING SERVICE PURSUANT TO RULE 12(b)(5)
Marc E. Kasowitz
David J. Shapiro
KASOWITZ, BENSON, TORRES &
FRIEDMAN LLP
1633 Broadway
New York, New York 10019
Telephone: [phone]
Wayne G. Petty (#2596)
MOYLE & DRAPER, P.C.
175 East 400 South, No. 900
Salt Lake City, Utah 84111
Telephone: [phone]
Attorneys for Defendant Peter Jarowey

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... ii
Summary of the Argument............................................................................................................. 1
FACTS ........................................................................................................................................... 1
Incentive Served The Wrong “Peter M. Jarowey”............................................................. 1
ARGUMENT................................................................................................................................. 4
Because Defendant Peter M. Jarowey II Was Not Served With The Summons
And Amended Complaint In Compliance With Rule 4, Service Should Be
Quashed Pursuant To Rule 12(b)(5). ................................................................................. 4
CONCLUSION.............................................................................................................................. 6

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TABLE OF AUTHORITIES
Page(s)
CASES
Allison v. Utah County Corp.,
335 F. Supp. 2d 1310 (D. Utah 2004)........................................................................................6
Beal v. Utah State Tax Comm'n ex rel. Lewis,
2005 U.S. Dist. LEXIS 39406 (D. Utah 2005) ..........................................................................4
Cheek v. Garrett,
2011 U.S. Dist. LEXIS 23209 (D. Utah 2011) ..........................................................................5
Fed. Deposit Ins. Corp. v. Oaklawn Apartments,
959 F.2d 170 (10th Cir. 1992) ...................................................................................................4
Jenkins v. City of Topeka,
136 F.3d 1274 (10th Cir. 1998) .................................................................................................4
Kippen v. Pack,
2010 U.S. Dist. LEXIS 104167 (D. Utah 2010) ........................................................................5
Lasky v. Lansford,
76 Fed. Appx. 240, 2003 WL 22147619 (10th Cir. 2003).........................................................4
Mohammed v. Davis County,
2008 U.S. Dist. LEXIS 42328 (D. Utah 2008) ..........................................................................5
Sherod v. Commissioner of Internal Revenue,
2001 U.S. Dist. LEXIS 7062 (D. Utah 2001) ............................................................................4
Warmington v. Keeth,
2008 U.S. Dist. LEXIS 66437 (D. Utah 2008) ..........................................................................6
STATUTES
Cal. Civ. Proc. Code §§ 415.10, 415.20, 416.90 (Deering 2011)....................................................5
RULES
Fed. R. Civ. P. 4...................................................................................................................1, 4, 5, 6
Fed. R. Civ. P. 12.....................................................................................................................1, 2, 4
Utah R. Civ. P. 4 ..............................................................................................................................5

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Defendant Peter Jarowey (“Jarowey”), through his attorneys, respectfully submits this
memorandum of law in support of his motion to quash the service of the Summons and Amended
Complaint in this action (Docket Numbers 10, 11, and 12), and states as follows:
Summary of the Argument
There are two Peter M. Jaroweys in this world. Peter M. Jarowey II is the father of Peter
M. Jarowey III. Peter M. Jarowey II is a resident of Massachusetts and he is the purported
defendant in this action. Peter M. Jarowey III is a resident of California and he is not a party to
this action.
On April 21, 2011, Plaintiff Incentive Capital, LLC (“Incentive”) served the wrong Peter
M. Jarowey. Incentive’s counsel was informed of this fact three days later. The defendant, Peter
M. Jarowey II, however, has never been served with a copy of the Summons and Amended
Complaint in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure.
Therefore, pursuant to Rule 12(b)(5), service of process on “Peter Jarowey” should be quashed
and Incentive should be ordered to obtain an Amended Summons from the Deputy Clerk of the
Court and serve Peter M. Jarowey II with a copy of the Amended Summons and the Amended
Complaint in conformity with Rule 4.
FACTS
Incentive Served The Wrong “Peter M. Jarowey”
Incentive is represented by Pia Anderson Dorius Reynard & Moss LLC (“PARDM”).
The lead attorney from PARDM on this case is Joseph Pia.
On March 25, 2011, PARDM, on behalf of Incentive, filed a complaint (the “Original
Complaint”) against Robert B. Atwell (“Atwell”), Camelot Distribution Group (“CDG”),
Camelot Film Group (“CFG”) (CDG and CFG are referred to collectively as “Camelot”), Steven

Istock and Jamie Thompson (collectively, the “Original Defendants”) (Docket No. 1). The
Original Complaint alleges breach of contract and related torts in connection with the financing
of the purchase of a film library. The contracts and other documents allegedly breached are only
between Incentive, on the one hand, and CDG, CGF and/or Atwell, on the other hand. There are
no allegations of fraudulent inducement in the Original Complaint.
Between March 25 and April 14, no summonses or copies of the Original Complaint
were issued and served on the Original Defendants. See Docket Sheet. On April 14, PARDM
filed an Amended Complaint adding “Peter Jarowey” and Ted Baer (“Baer”) as defendants, and
adding claims for fraudulent inducement and related torts in connection with the contracts.
(Docket No. 2). Both Jarowey and Baer were independent consultants who provided services to
Camelot.1
Jarowey is a resident of Massachusetts. Declaration of David J. Shapiro, dated May 23,
2011 (“Shapiro Decl.”), ¶ 1. Jarowey’s full name is “Peter M. Jarowey II.” Id. Peter M.
Jarowey II has a 24-year old son whose full name is “Peter M. Jarowey III.” Id., ¶ 2. Peter M.
Jarowey III is a resident of California who resides at 360 North Curson Avenue, Apartment No.
1, Los Angeles, California 90036, and he is a former employee of Camelot. Id.
On April 15, Joseph Pia instructed D. Mark Jones, the Deputy Clerk for the United States
District Court for the District of Utah, to issue a Summons to “Peter M. Jarowey” at 360 North
Curson Avenue, Apartment No. 1, Los Angeles, California 90036 (the “Summons”). Id., Ex. A.
The Summons erroneously lists the “Peter Jarowey” who resides in California as the
“Defendant” in this action. Id.

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Baer’s motion to dismiss for lack of jurisdiction is currently pending. The facts that support that motion – i.e.,
Baer’s lack of any meaningful contacts with the State of Utah – apply with even greater force to Jarowey. Jarowey
is not an attorney, he has never had any clients in Utah, he has never conducted any business in Utah, and he had no
communications with Incentive, Baer or others from Camelot in Utah.

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On April 18, Alan Markawa of the Los Angeles Attorneys Service, 1610 Beverly Blvd.,
Suite 3, Lost Angeles, California 90026, left a copy of the Summons and Amended Complaint
with Neil Spiro, Peter M. Jarowey III’s roommate. Id., Exs. B and C. Mr. Spiro is not
authorized to accept service on behalf of Peter M. Jarowey II. Id., ¶ 4.
The next day, Peter M. Jarowey III wrote to Deputy Clerk Jones and explained as
follows:
4/19/2011
Dear Deputy Mark Jones:
My roommate received this summons last night, Monday, April 18,
2011, with no server information attached. Therefore, I am
sending this package back to you as I am not the person this Court
intends to serve. Please ask Joseph F. Pia to do a little more work
in researching where defendants live rather than flipping through
public directories in California.
Sincerely,

Peter M. Jarowey Jr. III
P.S. – If you have any questions, please feel free to call me at
[phone].
Id., Ex. C. In order to highlight the error, Peter M. Jarowey III circled the “Jr. III” in his name
and wrote, next to an arrow pointing to the circle, “This part is very important.” Id.
The note was sent to the Court via USPS and was filed on April 21 (Docket No. 11), thus
making it available for counsel to review. PDRM has access to all documents filed with the
Court, but, since April 21, it has never sought to serve a copy of the Summons and Amended
Complaint on the correct Peter M. Jarowey. Id., ¶ 6.

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ARGUMENT
Because Defendant Peter M. Jarowey II Was Not Served With
The Summons And Amended Complaint In Compliance
With Rule 4, Service Should Be Quashed Pursuant To Rule 12(b)(5).
In Federal court, service of process is governed by Rule 4 of the Federal Rules of Civil
Procedure (“Rule 4”). Pursuant to Rule 4, service upon an individual may only be effected by:
(i) following state law for serving a summons in the state where the district court is located or
where service is made; (ii) delivering a copy of the summons and complaint to the individual
personally; (iii) leaving copies at the individual's dwelling house or usual place of abode with
some person of suitable age and discretion who resides there; or (iv) delivering a copy of the
summons and complaint to an agent authorized by appointment or by law to receive service of
process. Fed. R. Civ. P. (4)(e).
“Effectuation of service is a precondition to suit[.]" Jenkins v. City of Topeka, 136 F.3d
1274, 1275 (10th Cir. 1998). A challenge to improper service under Rule 4 is brought via Rule
12(b)(5) which states that “insufficient service of process” is a defense which may be asserted
via motion. Service of process of an individual that does not comport with the requirements of
Rule 4 is “insufficient service of process” under Rule 12(b)(5). Sherod v. Commissioner of
Internal Revenue, 2001 U.S. Dist. LEXIS 7062, at *4 (D. Utah 2001).
"’When service of process is challenged by a defendant, the burden rests with the plaintiff
to establish that service was properly made.’" Beal v. Utah State Tax Comm'n ex rel. Lewis,
2005 U.S. Dist. LEXIS 39406 at *2 (D. Utah 2005) (quoting Neely v. Eshelman, 507 F. Supp.
78, 80 (E.D. Penn. 1981)). See also Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d
170, 174 (10th Cir. 1992) (stating that the plaintiff has the burden of establishing service of
process); Lasky v. Lansford, 76 Fed. Appx. 240, 2003 WL 22147619 (10th Cir. 2003) (affirming
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district court's decision to dismiss because the plaintiff failed to meet his burden of showing that
service was sufficient).
Here, it cannot be disputed that there has been “insufficient service of process.” None of
the methods of service on an individual as set forth in Rule 4 were successfully completed in this
case. The law of the state of Utah, where the District Court is located, and the law of the State of
California, were service was attempted, mirror the requirements of Rule 4 (Rule 4(e)(1)). See
Utah R. Civ. P. 4; Cal. Civ. Proc. Code §§ 415.10, 415.20, 416.90 (Deering 2011). Here, the
Summons and Amended Complaint were not delivered to the defendant Peter M. Jarowey II;
they were not left at Peter M. Jarowey II’s dwelling house, usual place of abode, or with a person
of suitable age and discretion residing therein; and neither Peter M. Jarowey III nor Neil Spiro
are agents authorized by appointment or law to receive service of process on behalf of Peter M.
Jarowey II. Shapiro Decl., ¶¶ 2 and 4.
The law in this district is that when there has been insufficient service upon a defendant
under Rule 4 (but the defendant has not been prejudiced by the improper service), the appropriate
remedy is to quash the service. See, e.g., Cheek v. Garrett, 2011 U.S. Dist. LEXIS 23209 (D.
Utah 2011) (where plaintiffs did not deliver a copy of the summons and the complaint to the
individual defendants personally and they did not leave them at their usual place of abode, court
grants defendants’ motion to quash service); Kippen v. Pack, 2010 U.S. Dist. LEXIS 104167 (D.
Utah 2010) (where neither the defendant nor the defendant's agent authorized by appointment or
by law to receive service of process signed a document indicating receipt of the summons and
complaint, defendant’s motion to quash service is granted); Mohammed v. Davis County, 2008
U.S. Dist. LEXIS 42328 (D. Utah 2008) (where plaintiff left summons and complaint with a
person who was not authorized to accept same on defendant’s behalf, defendant’s motion to

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quash service is granted); Warmington v. Keeth, 2008 U.S. Dist. LEXIS 66437 (D. Utah 2008)
(where plaintiff served process at defendant’s wife’s place of business, court quashes service);
Allison v. Utah County Corp., 335 F. Supp. 2d 1310 (D. Utah 2004) (where receptionist was not
authorized to accept service on defendant’s behalf, court quashes service).
As in the cases cited above, Incentive failed to serve Defendant Peter M. Jarowey II
pursuant to the dictates of Rule 4 even after being informed that the wrong Peter M. Jarowey had
received copies of the Summons and Amended Complaint. The service of process, therefore,
should be quashed.
CONCLUSION
For the foregoing reasons, Jarowey’s motion to quash service should be granted.
Dated: May 23, 2011
Respectfully submitted,
KASOWITZ, BENSON, TORRES &
FRIEDMAN LLP
Marc E. Kasowitz
David J. Shapiro
and
MOYLE & DRAPER, P.C.

By: /s/ Wayne G. Petty
Wayne G. Petty
Attorneys for Defendant Peter Jarowey

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Certificate of Service
I hereby certify that on this 23rd day of May, 2011, I caused a true and correct copy of the
foregoing MEMORANDUM OF LAW IN SUPPORT OF THE MOTION BY
DEFENDANT PETER JAROWEY FOR AN ORDER QUASHING SERVICE
PURSUANT TO RULE 12(b)(5) as indicated upon the following:
Jonathan M. Levitan, Esq.
LAW OFFICES OF JONATHAN MARK LEVITAN
12400 Wilshire Blvd., Suite 1300
Los Angeles, CA 90025

Sent via U.S. Mail
Sent via EMail
Sent via CMECF Filing

Joseph G. Pia, Esq.
PIA ANDERSON DORIUS REYNARD & MOSS LLC
222 South Main Street, Suite 1800
Salt Lake City, UT 84101

Sent via U.S. Mail
Sent via EMail
Sent via CMECF Filing

Michael O’Brien
VANCOTT BAGLEY
36 S. State St., Suite 1900
Salt Lake City, UT 84111

Sent via U.S. Mail
Sent via EMail
Sent via CMECF Filing

Dennis R James, Esq.
MORGAN MINNOCK RICE & JAMES
136 S MAIN STE 800
Salt Lake City, UT 84101

Sent via U.S. Mail
Sent via EMail
Sent via CMECF Filing

/s/ Wayne G. Petty

Wayne G. Petty
Attorney for Defendant Peter Jarowey

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