Popsockets LLC v. Hueffner

Filing 9

ORDER signed by Judge Pamela Pepper on 9/13/2017. 7 Plaintiff's motion for extension of time GRANTED; deadline for plaintiff to serve defendant EXTENDED to 11/14/2017. 7 Plaintiff's request to authenticate publication summons GRANTED; clerk of court to authenticate publication summons filed as dkt. no. 8-1. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

POPSOCKETS, LLC,
Plaintiff,
v.

Case No. 17-cv-827-pp

CRAIG HUEFFNER, INDIVIDUAL AND
D/B/A ABSOLUTE MARKETING
Defendants.
ORDER GRANTING THE PLAINTIFF’S CIVIL L.R. 7(H) EXPEDITED NONDISPOSITIVE MOTION FOR AN EXTENSION OF TIME TO SERVE THE
DEFENDANT AND FOR AN ORDER DIRECTING THE CLERK OF COURT TO
AUTHENTICATE PUBLICATION SUMMONS (DKT. NO. 7)

On June 14, 2017, the plaintiff, Popsockets, LLC, filed a complaint
against defendant Craig Hueffner (individually and doing business as Absolute
Marketing), alleging two counts of patent infringement. Dkt No. 1. About fortyfive days later, the plaintiff notified the court that it was having trouble
effecting service on the defendant, but describing for the court the six different
attempts that it had made. Dkt No. 6. In text-only order, the court denied the
plaintiff’s request for an advisory opinion as to whether the plaintiff’s attempts
satisfied its obligations under Fed. R. Civ. P. 4, and directed the plaintiff to
continue its attempts to serve the defendant.
On September 8, 2017, the plaintiff filed a Civil Local Rule 7(h) expedited
non-dispositive motion for an extension of time to serve the defendant, and for
an order directing the clerk of court to authenticate publication summons. Dkt
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No. 7. In support of this motion, the plaintiff filed an affidavit of non-service
from a process server, detailing eight further unsuccessful attempts to serve
the defendant. Dkt. No. 8-1 at 3.
The plaintiff now asks the court for a sixty day extension of time to
effectuate service, because the plaintiff intends to serve the plaintiff by
publication. Dkt. No. 7 at 2. The plaintiff notes that service by publication will
require three separate publications of the notice, and that the process likely
will take approximately one month to complete. Id. The plaintiff further asks
the court to direct the clerk of court to authenticate the publication summons
attached to its motion, explaining that in Burnett v. Hill, the Wisconsin
Supreme Court has held that the plaintiff is required to have its publication
summons authenticated before service by publication may be effectuated.
Burnett v. Hill, 207 Wis. 2d 110, 119-20 (Wis. 1997).
Fed. R. Civ. P. 4(m) requires the plaintiff to serve the defendant within
ninety days after the plaintiff files the complaint. In this case, those ninety
days would expire on September 14, 2017. If the plaintiff can show good cause
for the failure to serve the defendant within the ninety days, however, “the
court must extend the time for service for an appropriate period.” Fed. R. Civ.
P. 4(m) (emphasis added). By the court’s count, the plaintiff has attempted
seventeen service attempts at several different locations. See Dkt. No. 6; Dkt.
No. 7. The plaintiff has served the defendant’s mother (dkt. no. 6 at ¶6), as well
as an employee of the defendant, Charles Alexander Delozier. Id. at ¶3. The
court finds that the plaintiff’s diligence and multiple efforts at service without
success constitute good cause under Rule 4(m), and it will grant the extension.
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Rule (4)(e)(1) instructs the plaintiff to “follow[] state law for serving a
summons in an action brought in courts of general jurisdiction in the state
where the district court is located or where service is made[.]” Here, the plaintiff
seeks to exhaust its possible methods of service by serving the defendant
through publication. Under Wis. Stat. §801.11(1)(c), “service may be made by
publication of the summons as a class 3 notice, under ch. 985, and by
mailing.” The Wisconsin Supreme Court has explained that that provision
requires “that the publication summons published and mailed to the defendant
be authenticated.” Burnett, 207 Wis.2d at 121. Because Rule 4(e)(1) instructs
federal litigants to follow state law for serving a summons, the court finds that
the plaintiff’s request to authenticate its publication summons is appropriate.
The Burnett Court, citing to Wis. Stat. §801.09(4), notes that a summons is
authenticated for publication purposes when the clerk of courts places a file
stamp on each copy, indicating the case number. Burnett, 207 Wis. 2d at 113114, n.3.
The court GRANTS the plaintiff’s Civil L. R. 7(h) expedited nondispositive motion for an extension of time to serve the defendant. Dkt. No. 7.
The court ORDERS that the deadline for the plaintiff to effectuate service on
the defendant is EXTENDED to November 14, 2017. The court also GRANTS
the plaintiff’s request to authenticate the publication summons. The court
DIRECTS the clerk of court to authenticate the publication summons, attached

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as Exhibit 1 to the declaration of Zachary Willenbrink, by placing a file stamp
indicating the case number on the summons. Dkt. No. 8-1.
Dated in Milwaukee, Wisconsin this 13th day of September, 2017.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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