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Zorikova v. Kineticflix, LLC

United States District Court, C.D. California

October 10, 2019


          ORDER (GJSX) DISMISS [30; 33, 38744, 48]



         Presently 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 Motion.[1]


         This 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.)

         Zorikova 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.)

         On 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.)


         At 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).

         A. Adequacy of Service Under 12(b)(4)

         Kineticflix seeks dismissal of Zorikova's complaint because Zorikova failed to provide Kineetiflix a complete copy of the Complaint with the Summons. (Mot. 3-4.)

         Under 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).

         Here, 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.

         Furthermore, 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 opposes ...

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