VIRGINIA M. HERNANDEZ COVINGTON, District Judge.
This cause comes before the Court in consideration of Defendant BYOB Club, Inc.'s Motion to Quash Service of Process (Doc. # 62), filed on September 22, 2017. Plaintiffs responded on October 4, 2017. (Doc. # 65). For the reasons that follow, the Court grants the Motion and extends the deadline to serve BYOB Club to October 27, 2017.
On March 16, 2017, Plaintiffs filed their Complaint alleging violations of the Lanham Act, 15 U.S.C. § 1125(a)
Subsequently, on September 22, 2017, Plaintiffs filed a return of service document, indicating that a process server had effected service of process on an unnamed employee of BYOB Club on September 1, 2017. (Doc. # 63). But, on September 22, 2017, BYOB Club filed a Motion to Quash Service of Process pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure. (Doc. # 62). BYOB Club argues that Plaintiffs have not established that service was properly effected under Fed. R. Civ. P. 4(h)(1). (
"`[W]hen service of process is challenged, the party on whose behalf service is made has the burden of establishing its validity.'"
Federal Rule of Civil Procedure 4(e)(1) provides that an individual can be served by "following 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). And Rule 4(h)(1) states that a corporation in a judicial district of the United States must be served either "in the manner prescribed by Rule 4(e)(1) for serving an individual" or
Fed. R. Civ. P. 4(h)(1).
As Plaintiffs emphasize, under Florida Statute § 48.081(3)(a):
Fla. Stat. § 48.081(3)(a). Furthermore, Florida Statute § 48.091(2) lays out requirements for designated agents to accept service:
Fla. Stat. § 48.091(2).
Thus, Plaintiffs insist that Fla. Stat. § 48.0831(3)(a) "allows the service of process to be executed on any employee at the corporation's principal place of business when the registered agent fails to comply with Fla. Stat. § 48.091." (Doc. # 65 at 5). The Court agrees. Plaintiffs may serve BYOB Club pursuant to state law, as authorized by Fed. R. Civ. P. 4(e)(1), rather than in the manner prescribed by Fed. R. Civ. P. 4(h)(1)(B). And, if BYOB Club has failed to comply with Fla. Stat. § 48.091, than Plaintiffs may serve BYOB Club pursuant to Fla. Stat. § 48.0831(3)(a).
Plaintiffs argue that they made "numerous attempts" to serve Andrew Harrow, BYOB Club's registered agent, at his registered office at 105 US Hwy 301 South, Suite 110, Tampa, FL 33619. (Doc. # 65 at 3). This includes an attempt to serve Andrew Harrow on June 27, 2017 at 10:30 a.m., consistent with Fla. Stat. § 48.091(2). (
Still, service pursuant to Fla. Stat. § 48.0831(3)(a) would only be proper if an actual employee of BYOB Club was served at BYOB Club's principal place of business. In its Motion, BYOB Club states that "it does not have any physical location." (Doc. # 62 at 2). But, as Plaintiffs have shown, BYOB Club's principal place of business is listed as 8504 Adamo Drive, Suite 150, Tampa, FL 33619 on its 2017 Florida Profit Corporation Annual Report. (Doc. # 65-3).
Next, BYOB Club argues that "the only person associated with BYOB is the registered agent, Andrew Harrow." (Doc. 62 at 2). "Further, the individual served was not an officer, managing or general agent, employee of BYOB, employee of BYOB's registered agent, or any other agent authorized by appointment or by law to receive service of process for BYOB." (
In contrast, Plaintiffs assert that, while "the employee did not provide her name to the process server, she did, however, identify herself as an employee of BYOB Club, Inc." (
(Doc. # 63 at 1). The affidavit only establishes that the woman identified herself as an employee of a business at that location — not specifically as an employee of BYOB Club.
Furthermore, Plaintiffs' Amended Complaint states that multiple Defendants share the same principal place of business, including The Bottle Club, LLC, Eyes Wide Shut, LLC, and BYOB Club. (Doc. # 38 at 6). It is true that BYOB Club's Motion does not clarify the identity of the individual served or specify the entity for which that individual works. Nevertheless, counsel for BYOB Club has asserted, under the dictates of Fed. R. Civ. P. 11, that the woman served is not an employee of BYOB Club.
Because multiple entities share the same principal place of business, the unidentified person served did not specifically state her employer, and BYOB Club insists the person was not its employee, Plaintiffs have not met their burden of establishing service was properly effected under Fla. Stat. § 48.081(3)(a). Therefore, the Motion is granted.
Still, BYOB Club should note that the "Court will not require a plaintiff to expend limitless resources in order to effect service upon a defendant who has actual notice of suit and who intentionally evades service."
As mentioned above, Plaintiffs have made numerous attempts to serve BYOB Club. (Doc. # 65 at 3-4). Furthermore, Plaintiffs represent that Susan Harrow, BYOB Club's managing member, told the process server that "`they will not be accepting any lawsuit,' `they will not be opening the door for anyone,' and `she will not be excepting [sic] any paperwork on a frivolous lawsuit.'" (
Accordingly, it is