United States District Court, C.D. California
ORDER (GJSX) DISMISS [30; 33, 38744, 48]
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
before the Court is Defendant Kineticflix, LLC's
("Kineticflix") Motion to Dismiss for insufficient
process and insufficient service of process. (Mot. to Dismiss
("Mot."), ECF Nos. 30.) For the reasons below, the
Court DENIES Kineticflix's
action arises from allegations by Plaintiff Alia Anatolyevna
Zorikova ("Zorikova") that Kineticflix reproduced,
distributed, and publicly displayed Zorikova's
copyrighted audiovisual work titled "Ballet Class Victor
Kabaniaev DVD" ("Subject Video"). (Compl.
¶ 1.) Zorikova alleges Kineticflix published the Subject
Video on Kineticflix's website without her authorization.
(Compl. ¶ 15.) On October 21, 2016, Zorikova mailed a
cease and desist letter to Kineticflix's address at 43250
Shoshoni Loop, Fall River Mills, California but did not
receive a response. (Compl. ¶¶ 16-17.) On May 15,
2019, Zorikova filed this action as a pro se plaintiff in the
Central District of California. (See Compl. 1-10.)
alleges Olivia Jeong ("Jeong"), not a party to this
lawsuit, properly served Kineticflix through Jack Einwechter
("Einwechter"), Kineticflix's appointed service
of process agent, on July 25, 2019. (Proof of Service, ECF
No. 16; PL's Opp'n Ex. 2, ECF No. 33-2.) An affidavit
states Jeong went to the address listed through the
California Secretary of State website and encountered a man
with gray hair. (Decl. of Olivia Jeong II ("Jeong Decl.
II") ¶¶ 4-5, ECF No. 49.) When Jeong inquired
as to the whereabouts of the law office of Mr. Einwechter,
the man responded he was Mr. Einwechter. Jeong, then, handed
Einwechter full copies of Summons and Complaint. (Jeong Decl.
II ¶¶ 4-5.)
September 6, 2019, Kineticflix filed a Motion to Dismiss for
defective process and insufficient service of process. (Mot.
to Dismiss 1, 6 ("Mot."), ECF No. 30.) Kineticflix
alleges the attempted service of process was defective and
insufficient because it was served by Zorikova herself, was
not properly addressed to the Defendant and did not include a
complete copy of the complaint. (Mot. 2.) On September 9,
2019, Zorikova filed a Motion to Strike. (PL's Opp'n
("Opp'n"), ECF No. 33.)
issue is whether Zorikova provided adequate service and
service of process. Court now determines whether
Zorikova's complaint should be dismissed pursuant to
12(b)(4) or (5).
Adequacy of Service Under 12(b)(4)
seeks dismissal of Zorikova's complaint because Zorikova
failed to provide Kineetiflix a complete copy of the
Complaint with the Summons. (Mot. 3-4.)
Federal Rule of Civil Procedure ("Rule") 12(b)(4),
a party may seek dismissal of a complaint for insufficient
process. Fed.R.Civ.P. 12(b)(4). The sufficiency of process is
governed by Rule 4, which requires, among other things, that
a summons must "name the court and the parties" and
"be directed to the defendant" Fed.R.Civ.P.
4(a)(1)(AMB). Rule 4 states that service of process on a
corporation can be affected in several ways, including
"delivering a copy of the summons and complaint to an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process." Fed.R.Civ.P. 4(h)(1)(B). The Ninth Circuit has
held that "Rule 4 is a flexible rale that should be
liberally construed so long as a party receives sufficient
notice of the complaint." United Food &
Commercial Workers Union v. Alpha Beta Co., 736 F.2d
1371, 1382 (9th Cir. 1984). Thus, "dismissal is
generally not justified absent a showing of prejudice."
Id. (citations omitted). If service of process is
insufficient, the district court has discretion to dismiss an
action or quash service. S.J. v. Issaquah Sch. Dist. No.
411, 470 F.3d 1288, 1293 (9th Cir. 2006).
the Court determines that Kineticflix received sufficient
notice of the complaint. For example, Kineticflix's
counsel, John Hyatt ("Hyatt"), states that
Kineticflix had lawfully purchased a CD of the subject ballet
class video, that Kineticflix lawfully rented the Subject
Video, and that Kineticflix did not infringe on
Zorikova's intellectual property rights. (Deck of John
Hyatt ¶ 2, ECF No. 30-3.) Based on the
correspondence between the parties regarding the matter,
Kineticflix appears to have adequate notice of the Complaint.
Kineticflix does not argue that the lack of service is
prejudicial; instead, it argues only that the first page of
the Complaint was delivered to Mr. Einwechter with the
summons. (Mot. 3.) Kineticflix alleges that the service of a
partial complaint is insufficient, citing Cherry v.
Spence,249 F.R.D. 226, 229 (E.D. N.C. 2008). The use of
Cherry is misplaced. In Cherry, plaintiff
attempted to complete service by faxing only the first page
of his complaint, without a summons, and thus failed to
provide complete service. Id. at 227. Here,
Kineticflix alleges that Zorikova delivered only the first
page of the Complaint to Einwechter with a one-page summons.
(Def.'s Mem. 2-3, ECF No. 30-5.) Furthemore, Zorikova