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Rosen v. Netsaits

February 25, 2013

ROSEN
v.
NETSAITS



The opinion of the court was delivered by: Present: The Honorable Margaret M. Morrow

CIVIL MINUTES - GENERAL

ANEL HUERTA N/A

Deputy Clerk Court Reporter

Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None None

Proceedings: Order Dismissing Plaintiff's Action Without Prejudice for Failure to Serve All Parties

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 5, 2010, Barry Rosen commenced this action under the Copyright Act, 17 U.S.C. § 101 et seq., against defendants Netsaits, B.V. ("Netsaits"), Jennsights, Inc. ("Jennsights"), and certain fictitious defendants.*fn1

On August 16, 2010, Rosen filed a proof of service on Jennsights.*fn2 On September 15, 2010, he filed a proof of service on Netsaits.*fn3 On September 23, 2010, Rosen requested that the clerk enter defendants' default because they had failed to appear or respond to the complaint within the time prescribed by the Federal Rules of Civil Procedure.*fn4 The clerk issued a notice of deficiency stating that Jennsights' default could not be entered because the proof of service Rosen filed lacked required information, i.e., the name of the person who accepted service on its behalf.*fn5 The clerk also issued a notice that Rosen's request for entry of Netsaits' default had been forwarded to the assigned judge for consideration, because the clerk could not determine the sufficiency of service on a foreign corporation.*fn6

On September 30, 2010, Rosen filed another proof of service on Netsaits."*fn7 On October 12, 2010, he filed another request that the clerk enter its default, asserting that he had served the complaint on Netsaits as evidenced by the proof of service filed September 30, 2010. On November 3, 2011, Rosen filed yet another proof of service on Netsais.*fn8

On December 13, 2012, the court issued an order to show cause why the case should not be dismissed for failure to serve the defendants. The order described the ways in which the service of process Rosen claimed to have completed appeared to be deficient.*fn9 The order instructed Rosen to detail his compliance with the requirements of Rule 4(h) of the Federal Rules of Civil Procedure. Specifically, it directed Rosen to provide a sworn declaration specifying the date of service, as well as "factual information and legal argument demonstrating that his service on Netsais was proper under the Hague Convention or Netherlands law."*fn10 The court also instructed Rosen to produce a translated copy of the document attached to his January 3 proof of service, as well as a declaration explaining the significance of the seal on the proof of service form.*fn11 Finally, it directed Rosen to file proof that he had served Jennsight's registered agent as required by Rule 4(h)(1)(B).*fn12 The court stated that failure to comply would result in immediate dismissal of Rosen's claims against defendants.*fn13

II. DISCUSSION

A. Service Under Rule 4 of the Federal Rules of Civil Procedure

Under Rule 4(h) of the Federal Rules of Civil Procedure, a domestic or foreign corporation may be served in a judicial district of the United States by following the law for service of summons of the state where the district court is located or where service is made, or "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and -- if ...


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