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J & J Sports Productions, Inc v. Armando Rios Torres

April 22, 2011

J & J SPORTS PRODUCTIONS, INC., PLAINTIFF,
v.
ARMANDO RIOS TORRES, INDIVIDUALLY AND D/B/A CAVOUR CLUB, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is defendant's "Motion to Quash Service and Dismiss the Complaint," filed on March 9, 2011.*fn1 (Dkt. No. 17.) Because oral argument would not materially aid the resolution of the pending motion, this matter is submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has fully considered the parties' submissions and appropriate portions of the record in this case and, for the reasons that follow, denies defendant's Motion to Quash Service and Dismiss the Complaint.

I. BACKGROUND

On November 9, 2010, plaintiff filed its complaint, which alleges that defendant is liable for violations of 47 U.S.C. §§ 553, 605; California Business and Professions Code § 17200; and the tort of conversion under California law. (See generally Compl., Dkt. No. 1.) All of plaintiff's claims arise from defendant's alleged unlawful or unauthorized interception and broadcast of a closed-circuit feed of a boxing match called "'Firepower': Manny Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight Program," to which plaintiff allegedly held the exclusive commercial domestic distribution rights. (See id. ¶¶ 3, 9, 12, 19-20, 24, 30.) Defendant is alleged to be the owner, operator, licensee, permitee, or person in charge of a commercial establishment called the "Cavour Club," where the alleged interception and broadcast occurred. (Id. ¶ 7.) Plaintiff alleges that the Cavour Club is located at "302 South Union Street, Stockton, California 95205." (Id.)

On December 9, 2010, plaintiff filed a proof of service form*fn2 completed and signed under penalty of perjury by "L. Simmons,"*fn3 who appears to be a process server with Absolute Service of Los Angeles. (See Proof of Serv., Dkt. No. 5.) That proof of service states that Ms. Simmons served the summons, complaint, civil cover sheet, certification of interested parties, and order requiring joint status report on "Armando Rios Torres, Individually and DBA Cavour Club." (Id.) The proof of service declares that Ms. Simmons served defendant at the following address: 302 South Union Street, Stockton, California 95205. (Id.) Although the proof of service declares that plaintiff's process server served defendant, it also contains a boilerplate statement that personal service was effectuated by personal delivery of the documents "to the party or person authorized to receive service of process for the party." (Id.) As the form does not clarify this comment, and only states that service was completed "Pursuant To Federal Rules of Civil Procedure," it is not entirely clear from the proof of service who Ms. Simmons actually served with process. (Id.)

On December 29, 2010, defendant filed an answer to plaintiff's complaint, wherein he admits that he is the owner of the Cavour Club. (Answer ¶ 7, Dkt. No. 6.) Although defendant's answer includes a section entitled "Defendant's Affirmative Defense," the answer does not actually plead any defenses or affirmative defenses. (Answer at 5-6.)

Despite having already filed an answer, defendant filed his Motion To Quash Service and Dismiss the Complaint on January 13, 2011. (Dkt. No. 9.) Defendant was directed to re-notice his motion because it was defectively noticed. (Minute Order, Jan. 18, 2011, Dkt. No. 10.) On February 2, 2011, defendant filed another Motion To Quash Service and Dismiss the Complaint. (Dkt. No. 14.) Again, however, defendant's motion was defectively noticed, and the court ordered defendant to re-notice his motion. (Minute Order, Feb. 3, 2011, Dkt. No. 15.) Finally, on March 9, 2011, defendant filed the pending motion to quash and dismiss.

Plaintiff filed three written oppositions in response to defendant's three motions, and incorporates those oppositions by reference. (Dkt. Nos. 13, 16, 18.) Although the undersigned does not prefer this manner of incorporation by reference, plaintiff's written oppositions have been considered in resolving defendant's motion.

Notably, plaintiff's counsel submitted a declaration under penalty of perjury, which appends two relevant service-related documents. (Riley Decl. & Exs. 1-2, Dkt. No. 13, Doc. No. 13-1.) First, plaintiff submitted an "Affidavit of Reasonable Diligence" signed under penalty of perjury by Laura Lee Simmons ("Simmons Affidavit"), which substantiates in narrative form that she personally served defendant with process at 302 South Union Street in Stockton, California, and that the papers served pertained to the matter of J & J Sports Productions, Inc. v. Armando Rios Torres, No. 2:10-cv-3009 JAM KJN. (See Riley Decl., Ex. 1.) Second, plaintiff submitted an "Affidavit of Reasonable Diligence" signed under penalty of perjury by Ms. Simmons, which relates to the service of process in the matter of J & J Sports Productions, Inc. v. Dulce Torres, No. 2:10-cv-3012 JAM KJM.*fn4 (See Riley Decl., Ex. 2.) The latter action names Dulce Torres, individually and doing business as "El Malecon Bar & Grill." (Id.)

II. DISCUSSION

Defendant brings his Motion to Quash Service and Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(4), for insufficient process, and Rule 12(b)(5), for insufficient service of process. Defendant argues that despite the information attested to in the proof of service on file with the court, plaintiff actually served defendant at an incorrect address. He contends that although the business address for Cavour Club is 302 South Union Street in Stockton, California, plaintiff's process server actually served an employee of a restaurant called "Bar & Grill 'El Malecon,'" located at 2518 East Fremont Street in Stockton, California. (Def.'s Memo. of P. & A. In Supp. of Mot. to Quash & Dismiss ("Def.'s Memo.") at 2-3, Dkt. No. 17.) He further represents that the employee of the El Malecon business, who is a stranger to defendant, later delivered the summons and complaint to defendant at a Denny's Restaurant in Stockton, California. (Id. at 3.) Defendant submitted a letter from Karen Cortez, which is not sworn or signed under penalty of perjury, which states that Karen Cortez's mother, Veronica Cortez, was an employee at Bar and Grill "El Malecon" and was served with process in this case. (Mot. to Quash & Dismiss, Ex. 1.) Karen Cortez's letter further states she contacted defendant by telephone and subsequently delivered the documents to defendant at a Denny's Restaurant on December 9, 2010.*fn5 (Id.) In sum, defendant argues that despite plaintiff's proof of service, plaintiff served defendant at an incorrect address and by substituted service on a person who was a stranger to defendant. (Id. at 4 (stating that the summons in this case was "directed to the wrong, [sic] Business, wrong individuals and wrong address [sic] stranger to Defendant.")

Plaintiff counters with several arguments, which are well-taken. Each is addressed below.

A. Defendant Waived His Right to Challenge the Sufficiency of Process and the Sufficiency of Service of Process Plaintiff persuasively argues that defendant waived his right to assert defenses under Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5) by filing an answer that does not contain such defenses.

Federal Rule of Civil Procedure 12(b) permits a party to assert certain defenses by motion prior to the filing of a responsive pleading such as an answer. Among these defenses are challenges to the sufficiency of process and the sufficiency of service of process, which may be asserted pursuant to Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5), respectively. However, Rule 12(b) also provides that "[a] motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed." Fed. R. Civ. P. 12(b). Furthermore, Rule 12(h)(1) provides, as relevant here:

(h) Waiving and Preserving Certain Defenses.

(1) When Some Are Waived. A party waives any defense listed in ...


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