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Allphin v. Peter K. Fitness, LLC

United States District Court, N.D. California, San Jose Division

June 30, 2014





Third-Party Defendant Ideal Jacobs (Malaysia) Corporation ("Ideal Jacobs Malaysia") moves to dismiss for insufficient service of process under FRCP 12(b)(5). Third-Party Plaintiffs Peter K. Fitness and Peter T. Kofitsas ("Peter K. Fitness") attempted to serve Ideal Jacobs Malaysia through Andrew Jacobs, Executive Chairman of Ideal Jacobs Malaysia, on January 23, 2014. Ideal Jacobs Malaysia contends that Andrew Jacobs was not authorized to accept service on its behalf because he is not a managing or general agent of the corporation. Therefore, Ideal Jacobs Malaysia claims service was not effectuated when Peter K. Fitness personally served Mr. Jacobs on behalf of the corporation. For the following reasons, the Court DENIES Ideal Jacobs Malaysia's motion.


On February 13, 2013, Plaintiff Sondra Allphin filed a strict product liability claim against Peter K. Fitness LLC, Peter T. Kofitsas, Fulco Fulfillment, Inc. and Does 1-50. (Compl., ECF 1-1) Plaintiff alleges that she suffered a severe injury to her left hand while properly using a "Peter K. Fitness Band." ( Id. ¶ 1) Plaintiff claims that the band unexpectedly broke and lacerated her left hand, causing complex regional pain syndrome as well as other physical and emotional injuries. ( Id. ¶¶ 1, 4)

Defendant Peter K. Fitness filed a Third-Party Complaint (Impleader) against Ideal Jacobs Corporation and Ideal Jacobs (Xiamen) Corporation ("Ideal Jacobs Xiamen") on March 25, 2013 for product liability indemnity, indemnity and contribution. (Third Party Compl., ECF 4 ¶¶ 23-33) Thereafter, Peter K. Fitness filed three amended third-party complaints adding and/or removing parties from the action. (ECF 38, 43, 61) In the Third Amended Third-Party Complaint ("TATPC"), Peter K. Fitness listed Ideal Jacobs Malaysia and Ideal Jacobs Xiamen as Third-Party Defendants. (TATPC, ECF 61) Peter K. Fitness impleaded these corporations because it alleges that they designed, constructed, assembled, fabricated, manufactured, distributed, and sold the "Peter K. Fitness Band." ( Id. ¶¶ 32-34)

On January 23, 2014, Mr. Jacobs was served the Summons and TATPC in person at his residence in New Jersey. (Proof of Serv., ECF 75) The Proof of Service stated that Ideal Jacobs Malaysia had been served through Mr. Jacobs as "Chairman - Person authorized to accept service." ( Id. at 1) Ideal Jacobs Malaysia is a publicly owned corporation that is headquartered in Kuala Lumpur. (Opp. to Mot., ECF 79 at 3) Mr. Jacobs is the Executive Chairman of Ideal Jacobs Malaysia as well as the founder and President of Ideal Jacobs Corporation U.S. ( Id. at 4) In addition to his titled position at Ideal Jacobs Malaysia, Mr. Jacobs acts as a "promoter" by bringing business to the corporation, (Lompa Decl., ECF 79-1 ¶ 9, Exh. L at 5), and his company, Ideal Jacobs Corporation U.S., is its largest major shareholder. ( Id. ¶ 5, Exh. G at 12)

Ideal Jacobs Malaysia now seeks dismissal of this action for insufficient service of process claiming Mr. Jacobs was not the authorized agent for service of process for the corporation.


Federal courts lack personal jurisdiction over a defendant if service of process is insufficient. See, e.g., Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Under FRCP 12(b)(5), a defendant may move to dismiss a complaint for insufficient service of process. Fed.R.Civ.P. 12(b)(5). "Once service is challenged, plaintiff[] bear[s] the burden of establishing that service was valid under Rule 4." Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004); see also Fed.R.Civ.P. 4. When factual issues exist, courts may hear evidence outside of the pleadings, including affidavits and depositions, in order to determine the facts. See Old Republic Ins. Co. v. Pac. Fin. Servs. of Am., 301 F.3d 54, 57 (2d. Cir. 2002) (using evidence outside of the pleadings to determine validity of service of process on a corporation); see also Covington v. United States, No. 91-cv-01132-TEH, 1991 WL 11010699, at *1 (N.D. Cal. Dec. 20, 1991) (citing 5B Wright and Miller, Federal Practice & Procedure, § 1353 (3d ed.)). "If the plaintiff is unable to satisfy this burden, the Court has the discretion to either dismiss the action or retain the action and quash the service of process." Stevens v. Sec. Pac. Nat'l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976).

Pursuant to Rule 4(h)(1)(B), valid service of process on a corporation, partnership, or association may be effected 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 by law to receive service of process." Fed.R.Civ.P. 4(h)(1). Determining whether an individual is a "managing or general agent" depends upon "a factual analysis of that person's authority within the organization." Direct Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Service may also be effected by any method authorized under the law of the state in which the district court sits, or the state in which service occurred.[1] Fed.R.Civ.P. 4(h)(1)(A).


Peter K. Fitness argues that it effectively served Ideal Jacobs Malaysia by delivering the Summons and TATPC to Mr. Jacobs, the Executive Chairman of the corporation. (Opp. to Mot., ECF 79 at 1) In its papers, Peter K. Fitness highlights Mr. Jacobs' executive position on the Board of Directors as well as his official duties within the corporation. ( Id. at 4-5) Through his position on the Board, Mr. Jacobs wrote the most recent "Chairman's Statement, " which provides an annual review of the corporation's financial and operational activities. ( Id. at 5) He also acts as a "promoter" of the corporation by bringing business to Ideal Jacobs Malaysia and holds the largest number of shares in Ideal Jacobs Malaysia through his U.S. corporation. ( Id. at 4) This information is supported by exhibits and information taken directly from Ideal Jacobs Malaysia's website. ( Id. at 3)

Ideal Jacobs Malaysia asserts that Mr. Jacobs is not an officer, managing or general agent, or authorized by appointment or law to accept service of process on its behalf. (Mot., ECF 76-1 at 1-2) Although Mr. Jacobs holds the title of Executive Chairman of Ideal Jacobs Malaysia, he claims that he is nothing more than a "figurehead" for marketing purposes and that the duties he performs for the corporation do not qualify him as an agent for service of process. ( Id. at 3) Mr. Jacobs states that he is not responsible for the daily operations of Ideal Jacobs Malaysia or decisions regarding its overall business strategy. (Jacobs' Decl., ECF 76-2 ¶ 6) He does connect Ideal Jacobs Malaysia with potential customers in the United States. (Mot. at 5) Further, Mr. Jacobs' corporation, Ideal Jacobs U.S., is a major shareholder of Ideal Jacobs Malaysia, but it is emphasized that these two seemingly ...

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