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J & J Sports Productions, Inc. v. Tovar

United States District Court, D. Minnesota

July 12, 2017

J & J Sports Productions, Inc., Plaintiff,
v.
Maximilliano Carrillo Tovar, Orlando Floris Campis, and Agua Brava Restaurant, LLC individually, and d/b/a Agua Brava, and John DOES I-V, Defendants.

          Kimberly M. Hanlon, Kimberly M. Hanlon, LLC, Counsel for Plaintiff.

          Lora M. Friedemann and Katherine J. Ratlin, Fredrikson & Byron, P.A., Counsel for Defendants.

          MEMORANDUM OPINION AND ORDER

          Michael J. Davis United States District Court

         This matter is before the Court on Defendants Tovar and Campis's motion to dismiss the claims against them.

         I. Background

         On 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.

         Attempts 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 Fed.R.Civ.P. 55(b).

         At the 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.

         Thereafter, 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.

         Defendants 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.

         II. Failure to Properly Serve Defendants Tovar and Campis

         Defendants 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 favor.”

Devin v. Schwanʹs Home Servs., Inc., No. CIV. 04-4555 (RHK/AJB), 2005 WL 1323919, at *3 (D. Minn. May 20, 2005) ...


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