United States District Court, D. Minnesota
Kimberly M. Hanlon, Kimberly M. Hanlon, LLC, Counsel for
M. Friedemann and Katherine J. Ratlin, Fredrikson &
Byron, P.A., Counsel for Defendants.
MEMORANDUM OPINION AND ORDER
Michael J. Davis United States District Court
matter is before the Court on Defendants Tovar and
Campis's motion to dismiss the claims against them.
October 2, 2014, Plaintiff filed this lawsuit, alleging that
Defendants unlawfully intercepted and exhibited the
“Floyd Mayweather, Jr. v. Saul Alverez, WBC
Middleweight Championship Fight Program” (the
“Program”) at Agua Brava Restaurant. (Compl.
¶ 16.) These allegations are based upon the sworn
affidavit of investigator Francisco Ortiz, who contends that
he entered Agua Brava at 10:40 p.m. on September 14, 2013 and
observed the unlawful transmission at that time. (Hanlon Aff.
at Exh. A [Doc. No. 20].) Citing this investigation,
Plaintiff alleged that Defendants were in direct violation of
the Federal Communications Act (“FCA”), 42 U.S.C.
§ 605, et seq. and the Cable & Television Consumer
Protection and Competition Act, 42 U.S.C. § 553, et seq.
to serve Tovar and Campis were made on January 21, 2015.
(See Doc. Nos. 8 and 9.) Agua Brava Restaurant, LLC
was served on January 22, 2015. (Doc. No. 10.) None of the
defendants, or anyone acting on their behalf, filed an Answer
to the Amended Complaint within the time specified by
Fed.R.Civ.P. 12(a)(1)(A). Accordingly, the Clerk entered
default and Plaintiff moved for default judgment pursuant to
hearing on Plaintiff's motion, Defendants Tovar and
Campis appeared pro se. The Court continued the
hearing on Plaintiff's motion and directed the Defendants
to work with the Pro Se Project to seek counsel. Ultimately,
they were able to obtain counsel through the Pro Se Project.
Defendants Tovar, Campis, and Agua Brava Restaurant, LLC
moved to set aside the Clerk's entry of default, and
asked the Court to deny Plaintiff's motion for default
judgment on the basis that they have several colorable
defenses and that Plaintiff will not be prejudiced if the
default is lifted by the Court. (Doc. No. 38.) One such
defense raised in this motion was failure to properly serve
Tovar and Campis. (Doc. No. 40 at 5.) Plaintiff did not
oppose this motion, and the default was set aside.
Tovar and Campis now move the Court to dismiss the claims
against them based on failure to state a claim and for
insufficient service of process.
Failure to Properly Serve Defendants Tovar and
Tovar and Campis assert they were not properly served with
the Summons and Complaint and move to dismiss the claims
against them pursuant to Fed.R.Civ.P. 12(b)(5), insufficient
service of process. Properly effected service is a
fundamental element to any lawsuit, and a court lacks
jurisdiction over that defendant that has not been properly
served. See Willis v. Tarasen, 2005 WL 1705839, at
*2 (D. Minn. July 11, 2005).
On a motion to dismiss brought under . . . 12(b)(5),
insufficiency of process of service, the plaintiff must
establish prima facie evidence that there was sufficient
process and service of process. A prima facie case is
“[t]he establishment of a legally required rebuttable
presumption” or where “[a] partyʹs
production of enough evidence [allows] the fact-trier to
infer the fact at issue and rule in the partyʹs
Devin v. Schwanʹs Home Servs., Inc., No. CIV.
04-4555 (RHK/AJB), 2005 WL 1323919, at *3 (D. Minn. May 20,