Lasswell Foundation For Learning and Laughter, Inc. et al v. Schwartz et al

Middle District of Florida, flmd-8:2017-cv-00046

ORDER: (1) Denying Defendant Schwartz's Motion to Dismiss for Insufficient Service; (2) Quashing Improper Service on Defendant Schwartz; and (3) Ordering Plaintiffs to Effectuate Proper Service. Plaintiffs is ordered to effect proper service on both Defendants within thirty (30) days of the signature date of this Order. Signed by Judge Roger T. Benitez on 11/4/2016. (knb) (jao). [Transferred from casd on 1/10/2017.]

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PageID 226 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LASSWELL FOUNDATION FOR Case No.: 3:16-cv-00497-BEN-WVG LEARNING AND LAUGHTER, INC. 12 and FRED LASSWELL, INC., RED ORDER: 13 RYDER ENTERPRISES, INC., AND GOLDBOOK LTD., (1) DENYING DEFENDANT 14 Plaintiffs, SCHWARTZ'S MOTION TO 15 DISMISS FOR INSUFFICIENT v. SERVICE; 16 TIMOTHY SCHWARTZ; DESIGN 17 (2) QUASHING IMPROPER TANK, INC.; and DOES 1-10, inclusive, SERVICE ON DEFENDANT 18 Defendants. SCHWARTZ; and 19 (3) ORDERING PLAINTIFFS TO 20 EFFECTUATE PROPER SERVICE 21 22 23 Defendant Timothy Schwartz has filed a motion to dismiss for insufficient service 24 of process under Federal Rule of Civil Procedure 12(b)(5) or, in the alternative, a motion 25 to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 26 12(b)(2). (Mot., ECF No. 11.) Plaintiffs have opposed. (Opp'n, ECF No. 12.) For the 27 following reasons, the Court DENIES Defendant's motion, QUASHES the improper 28 service, and ORDERS Plaintiffs to effectuate proper service. 1 3:16-cv-00497-BEN-WVG PageID 227 1 BACKGROUND 2 Plaintiffs filed their complaint on February 25, 2016 (ECF No. 1), and their 3 amended complaint on May 19, 2016 (ECF No. 5). The filed proof of service as to the 4 original complaint indicates that Defendant Timothy Schwartz and Defendant Design 5 Tank, Inc. were personally served at 503 N. Fair Street, Onley, Indiana 62450 on May 22, 6 2016. (ECF Nos. 6, 7.) The filed proof of service as to the amended complaint indicates 7 that Schwartz and Design Tank, Inc. were mailed a copy of the amended summons on 8 May 31, 2016 to the 503 N. Fair Street address. (ECF Nos. 9, 10.) 9 Schwartz filed his motion to dismiss on July 1, 2016, contending that he has never 10 been served. The 503 N. Fair Street address is actually located in Olney, Illinois, and is a 11 vacant property owned by Schwartz's father, John. (Mot., Decl. of John Schwartz ¶ 3.) 12 Moreover, Robert Schwartz, Defendant's brother, was the person ultimately served, and 13 at his home in Brownsburg, Indiana. (Mot., Decl. of Robert Schwartz ¶¶ 2-3.) Timothy 14 Schwartz contends that he was present in Florida at the time of the alleged service, and 15 that he has never had any affiliation with Design Tank, Inc. (Mot. at 5-6, Decl. of 16 Timothy Schwartz ¶¶ 17-19.) 17 Subsequent to Defendant's motion, Plaintiffs again tried to serve Schwartz "at 18 other possible addresses, including at 5108 W. Longfellow Ave. in Tampa, Florida," 19 which Schwartz identified as his residence in his moving papers. (Suppl. Decl. of Ben 20 Wagner in Support of Opposition to Timothy Schwartz's Motion to Dismiss ¶ 2, ECF 21 No. 15.) A process server attempted to serve Schwartz at his Tampa address on eight 22 occasions in July and August, but no one answered the door. (Id. ¶ 3.) On all but one 23 service attempt, a car was parked in the driveway. (Id.) The process server then served a 24 paralegal at the office of Schwartz's counsel, Matthew Faust. (Id. ¶ 6.) Faust 25 subsequently filed a declaration, objecting to Plaintiffs' service of his office. (Decl. of 26 Matthew Faust, ECF No. 16.) Faust contends that he never communicated to anyone at 27 Plaintiffs' counsel's office that his firm was authorized to accept service on behalf of 28 Schwartz. (Id. ¶ 4.) 2 3:16-cv-00497-BEN-WVG PageID 228 1 LEGAL STANDARD 2 Federal Rule of Civil Procedure 12(b)(5) authorizes a defendant to move for 3 dismissal resulting from insufficiency of service of process. See Fed. R. Civ. P. 12(b)(5). 4 When a defendant challenges service, the plaintiff bears the burden of establishing the 5 validity of service as governed by Federal Rule of Civil Procedure 4. See Brockmeyer v. 6 May, 383 F.3d 798, 801 (9th Cir. 2004). 7 Rule 4 provides four alternatives for service of individuals. Service is effective 8 pursuant to (1) the law of the state where the district court is located or of the state where 9 service is effected, see Fed. R. Civ. P. 4(e)(1); (2) by delivering a copy of the summons 10 and of the complaint to the individual personally, see Fed. R. Civ. P. 4(e)(2); (3) by 11 leaving copies thereof at the individual's dwelling house or usual place of abode with 12 some person of suitable age and discretion then residing therein, see id.; or (4) by 13 delivering a copy of the summons and of the complaint to an agent authorized by 14 appointment or by law to receive service of process, see id. 15 If the plaintiff is unable to satisfy its burden of demonstrating effective service, the 16 Court has discretion to either dismiss or retain the action. If the Court decides not to 17 dismiss, it quashes the ineffective service that has been made on the defendant and 18 provides the plaintiff the opportunity to serve the defendant again effectively. See 19 Stevens v. Security Pacific Nat'l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976). 20 DISCUSSION 21 Plaintiffs concede that they did not properly serve Timothy Schwartz in May. 22 (Opp'n at 4.) However, they contend that service has been successfully completed as of 23 August 5, 2016 "[i]n light of Schwartz's evasion of service at the address he indicated in 24 his own moving papers, and personal service on his attorney and agent." (Suppl. Decl. of 25 Wagner ¶ 8.) This Court disagrees. 26 As an initial matter, Plaintiffs have not briefed the issue of evasion of service, and 27 the Court will not hold that Schwartz has evaded service without proper briefing. 28 Moreover, although Plaintiffs did try to serve Schwartz multiple times, the mere fact that 3 3:16-cv-00497-BEN-WVG PageID 229 1 a car was parked in the driveway does not establish that Schwartz is evading service. As 2 to the alleged service on Schwartz's attorney, "[t]he attorney-client relationship by itself 3 is insufficient to convey authority to accept service." Kruska v. Perverted Justice 4 Foundation, Inc., No. CV-08-0054-PHX-SMM, 2009 WL 4041941, at *2 (D. Ariz. 2009) 5 (explaining that the "record must show that the attorney exercised authority beyond the 6 attorney-client relationship, including the power to accept service"). Here, Plaintiffs have 7 failed to demonstrate that Schwartz and his attorney have a relationship that extends 8 beyond a typical attorney-client relationship, and Schwartz's attorney denies that his firm 9 was authorized to accept service of process. See, e.g., Aviara Parkway Farms, Inc. v. 10 Agropecuaria La Finca, No. 8-CV-2301-JM-BLM, 2012 WL 1019618, at *1-2 (S.D. Cal. 11 Mar. 23, 2012) (quashing improper service of process on Defendants' attorneys). 12 It is clear that Schwartz has never been properly served. Furthermore, the 90-day 13 period to serve Schwartz has passed, so service is also untimely. Fed. R. Civ. P. 4(m). 14 Because Plaintiffs have not satisfied their burden of demonstrating proper service, the 15 court has discretion to either dismiss or retain the action. "Dismissal of a complaint is 16 inappropriate when there exists a reasonable prospect that service may yet be obtained. 17 In such instances, the district court should, at most, quash service, leaving the plaintiffs 18 free to effect proper service." Arasan Chip Sys., Inc. v. Sonix Tech. Co. Ltd., No. 509– 19 CV–02172 JF PVT, 2010 WL 890424, at *1 (N.D. Cal. Mar. 8, 2010) (internal quotation 20 omitted). 21 Here, it appears that effective service can be made. Therefore, the Court will 22 quash service rather than dismiss the action. Plaintiffs are given thirty (30) days from the 23 date of this Order to properly serve Defendant Schwartz again. 24 Moreover, because Defendant Design Tank, Inc. was also served at the 503 N. Fair 25 Street, Onley, Indiana address and no one has appeared on its behalf, it seems likely that 26 service on Design Tank, Inc. has also been improper and is untimely. Plaintiffs are given 27 thirty (30) days from the date of this Order to properly serve Defendant Design Tank, Inc. 28 /// 4 3:16-cv-00497-BEN-WVG PageID 230 1 CONCLUSION 2 Defendant's motion to dismiss is DENIED. The Court QUASHES the improper 3 service and ORDERS Plaintiffs to effect proper service on both Defendants within thirty 4 (30) days of the signature date of this Order. 5 IT IS SO ORDERED. 6 7 Dated: November 4, 2016 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 3:16-cv-00497-BEN-WVG