The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
On February 27, 2012, defendant Michael Anthony Thompson, who is proceeding in this action pro se, filed a motion to dismiss for failure to join an indispensable party pursuant to Fed. R. Civ. P. 12(b)(7), improperly joining defendant Thompson as an individual defendant, and for insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(5). The motion was initially noticed for hearing on March 29, 2012 and subsequently reset by the court for hearing on April 25, 2012. (Dkt. Nos. 7, 8.) On April 11, 2012, plaintiff filed an opposition to the motion. (Dkt. No. 9.)
Having reviewed the papers in support of and in opposition to the motion, the court finds that further briefing and oral argument would not be of material assistance in resolving the pending motion. Therefore, the April 25, 2012 hearing will be vacated, and the pending motion will be decided on the papers submitted. See E.D. Cal. L.R. 230(g). After reviewing the court's record, the court now FINDS AS FOLLOWS:
The background facts are taken from plaintiff's complaint, originally filed on November 10, 2011. (Dkt. No. 1.) Plaintiff J&J Sports Productions, Inc. is a commercial distributor and licensor of sporting events. (See Complaint, Dkt. No. 1 ["Compl."] ¶ 12.) Plaintiff alleges that it was granted, pursuant to contract, the exclusive nationwide commercial distribution (closed-circuit) rights to Tactical Warfare: Manny Pacquiao v. Antonio Margarito Championship Fight Program telecast nationwide on Saturday, November 13, 2010 ("Program"). (Compl. ¶ 10.) Plaintiff then entered into subsequent sublicensing agreements with various commercial customers throughout North America and in the State of California, granting these customers the rights to publicly exhibit the Program within their respective commercial establishments in the hospitality industry, such as hotels, racetracks, casinos, bars, taverns, restaurants, social clubs, etc. (Compl. ¶ 11.) According to plaintiff, it expended significant money marketing, advertising, promoting, administering, and transmitting the Program to its customers. (Compl. ¶ 12.)
Plaintiff contends that, without authorization, "Defendants and/or their agents, servants, workmen or employees did unlawfully intercept, receive, publish, divulge, display, and/or exhibit the Program at the time of its transmission at their commercial establishment in Vallejo, California located at 324 Virginia Street, Vallejo, California 94590." (Compl. ¶ 13.) Plaintiff further alleges that defendants did so wilfully and for purposes of direct and/or indirect commercial advantage and/or private financial gain, and that plaintiff was deprived of the commercial license fee that plaintiff was entitled to receive from them. (Compl. ¶¶ 14, 26.)
Based on these factual allegations, plaintiff asserted claims for (1) violation of 47 U.S.C. § 605; (2) 47 U.S.C. § 553; (3) conversion; and (4) violation of California Bus. & Prof. Code § 17200 against defendants. Defendants are identified as follows: (a) Derek Albert Barksdale, "an owner, and/or operator, and/or licensee, and/or permitee, and/or person in charge, and/or an individual with dominion, control, oversight and management of the commercial establishment doing business as Havana Sol Restaurant operating at 324 Virginia Street, Vallejo, California 94590"*fn1 and (b) Michael Anthony Thompson, "an owner, and/or operator, and/or licensee, and/or permitee, and/or person in charge, and/or an individual with dominion, control, oversight and management of the commercial establishment doing business as Havana Sol Restaurant operating at 324 Virginia Street, Vallejo, California 94590." (Compl. ¶¶ 7-8.)
The instant motion to dismiss by defendant Thompson followed. (Dkt. No. 7.) Facts applicable to the various asserted grounds for dismissal will be set forth below as necessary to the court's analysis.
As outlined above, defendant Thompson moves for dismissal on three separate grounds: (a) failure to join an indispensable party; (b) improper joinder of defendant Thompson as an individual defendant; and (c) insufficient service of process. Each ground will be separately addressed below.
(a) Failure to Join an Indispensable Party
Defendant Thompson states that Havana Sol Restaurant is actually the d/b/a of a California limited liability company known as 324 Virginia Street Partners, LLC, and that defendant Thompson is a member of 324 Virginia Street Partners, LLC. Defendant Thompson argues that, in the absence of 324 Virginia Street Partners, LLC, a separate legal entity, the court cannot afford complete relief among the existing parties, and that plaintiff's complaint should therefore be dismissed for failure to join an indispensable party.
A motion to dismiss before answering may be made on the ground of "failure to join a party under Rule 19." Fed. R. Civ. P. 12(b)(7). In turn, Rule 19 of the Federal Rules of Civil Procedure provides, in pertinent part, that:
(a) (1) A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person's absence, the court cannot afford complete relief among existing parties; or (B) that person claims an interest relating to the subject of the ...