United States District Court, D. Minnesota
BOWBEER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Plaintiff's Motion for
Defendant Manley Toy Direct, LLC to be Deemed Served [Doc.
No. 141]. The Plaintiff requests the Court deem Manley Toy
Direct, LLC (“MTD”) to have been served under Federal
Rule of Civil Procedure 4 (either via service on MTD's
former president, Richard Toth, or its last known legal
representative, Patrick Smith). In the alternative, if the
Court is not satisfied that MTD has already received
appropriate service, Plaintiff requests that the Court
authorize substituted service on MTD via Toth and/or Smith.
Defendant MTD has not responded to the motion. The Court does
not believe that a hearing is required on this
matter and will rule on the motion on the papers.
For the reasons set forth below, the motion is granted.
alleges that MTD is a Hong Kong-based corporation in a
network of companies that sell toys and electronics in the
United States. (Compl. ¶¶ 2, 31 [Doc. No. 1].)
Plaintiff and MTD (and its affiliates) have a long and bitter
history. In March 2019 Plaintiff named MTD and many others in
its Complaint, alleging fraud, civil conspiracy, and
violations of the Racketeer Influenced and Corrupt
Organizations Act. However, Plaintiff has struggled to serve
MTD as required by Federal Rule of Civil Procedure 4. (Compl.
at 8, 109-19, 124-28; Pl.'s Mot. Def. Deemed Served [Doc.
apparently administratively dissolved on June 20, 2016 and
has not had a designated registered agent since February
2016. (Pl.'s Ex. 3 at 2 [Doc. No. 141-3].) An
administratively dissolved business “continues its
corporate existence” but does not carry on any business
“except that necessary to wind up and liquidate its
business and affairs.” Iowa Code § 490.1421.
last president was Richard Toth. (See Pl.'s Ex.
1 ¶¶ 2-5 [Doc. No. 141- 1].) Toth resigned sometime
before 2015 and now works for MGS International, LLC.
(Pl.'s Ex. 1 ¶¶ 5-6].) Both Toth and MGS
International are defendants in this case. On May 21, 2019,
Plaintiff served Toth via his attorney in Des Moines, Iowa,
with a copy of the Complaint against Toth, MGS, and MTD
(among others). (Aff. Service [Doc. No. 29].)
also asserts that Patrick Smith, an attorney at Fredrikson
& Byron, P.A., is MTD's last known legal
representative. Smith currently represents MTD in a related
case in United States Court for the Southern District of
Iowa. Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc.,
et al., Case No. 4:18-cv-00434-JEG-HCA (S.D. Iowa). On
May 14, 2019, Plaintiff served the Complaint and Summons on
Smith at his office in Des Moines, Iowa. (Aff. Service [Doc.
argues first that MTD has already been effectively served via
the summons previously served on Toth. The Court agrees.
Federal Rules of Civil Procedure provide that a corporation
can be served in the same manner as an individual.
Fed.R.Civ.P. 4(h)(1)(B). Unless it contradicts federal law,
both individuals and corporations can be served a federal
summons in the manner proscribed by “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.” Fed.R.Civ.P. 4(e)(1). The
summons at issue in this motion were served in Iowa, so
Iowa's state law provides the guidelines for one possible
means of service.
Iowa Rules of Civil Procedure authorize service “[u]pon
a partnership, or an association suable under a common name,
or a corporation, by serving any present or acting or last
known officer thereof, or any general or managing agent, or
any agent or person now authorized by appointment or by law
to receive service of original notice, or on the general
partner of a partnership.” Iowa R. Civ. P. 1.305(6).
was MTD's last president before it was administratively
dissolved. He is therefore the “last known
officer” of MTD. “The ‘last known'
officers of an administratively dissolved corporation that no
longer has an office or does business in Iowa would certainly
include the corporation's officers at the time of the
dissolution.” Burris v. Versa Prod., Inc.,
Civ. No. 07-3938(JRT/JJK), 2008 WL 4346508, at *5 (D. Minn.
Sept. 17, 2008). Serving MTD via Toth was therefore both
proper and effective.
argues in the alternative that its service on Smith was a
separate and independently effective delivery of the summons
to MTD. In view of the Court's conclusion that service on
MTD through Toth satisfied the requirements of Federal Rule
of Civil Procedure 4 and Iowa Rule of Civil Procedure
1.305(6), the Court need not decide whether MTD was also
effectively served through Smith. Similarly, it does not need
to decide whether substituted service on MTD would be
appropriate. Toth does not need to be re-served.
IT IS HEREBY ORDERED that Plaintiff's
Motion [Doc. No. 141] is GRANTED. Defendant
Manley Toy Direct LLC is deemed served pursuant to Federal
Rule of Civil Procedure 4(h)(1) and Iowa Rule of Civil
Procedure 1.305(6) ...