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J & J Sports Productions, Inc. v. Wing Bistro LLC

United States District Court, Fourth Circuit

November 21, 2013

J & J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
WING BISTRO LLC, and THE WING SPOT CHICKEN & WAFFLES, INC., Defendants.

REPORT & RECOMMENDATION

TOMMY E. MILLER, Magistrate Judge.

This matter comes before the Court for entry of judgment of default in favor of the plaintiff, J & J Productions, Inc., and against the defendants, Wing Bistro LLC, and The Wing Spot Chicken & Waffles (d/b/a The Wing Spot). The plaintiff filed a Motion for Default Judgment on July 23, 2013. ECF No. 10. The defendants did not respond within the proper time for a response, making the Motion ripe for a decision. The Motion was referred to the undersigned on August 12, 2013. ECF No. 13. Based on the filings in this case, the undersigned RECOMMENDS that the plaintiff's motion be GRANTED and damages be awarded.

I. PROCEDURAL HISTORY

The plaintiff filed this suit on March 6, 2013, against the named defendants and John Doe. ECF No. 1. The lawsuit alleges violations of the Federal Communications Act of 1934, as amended in 47 U.S.C. §§ 553, 605 (2013).

On April 15, 2013, a copy of the summons and complaint was posted at the respective addresses of the registered agents of Wing Bistro and The Wing Spot Chicken & Waffles, Inc. ECF No. 4. On June 24, 2013, the Plaintiff requested an entry of default against the defendants as the defendants' time to answer the complaint had run. ECF No. 10. The Clerk of this Court submitted an Entry of Default as to the defendants on June 25, 2013. ECF No. 8.

On July 8, 2013, the Court issued a Show Cause Order as to defendant John Doe, because it appeared that the Complaint had not been served on him within the prescribed 120 days. ECF No. 9. Defendant John Doe was terminated from the case on July 31, 2013, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. ECF No. 12. Plaintiff's Motion for Default Judgment was filed on July 23, 2013, and based on the lack of a response by the defendants, the Motion is ripe.

II. JURISDICTION AND VENUE

Based on the facts of this case, the Court holds both subject matter jurisdiction over the case and personal jurisdiction over the defendant. Similarly, venue is proper.

(a) Subject Matter Jurisdiction

A federal district court has subject matter jurisdiction over claims that arise under federal law. See 28 U.S.C. § 1331 (2012). The plaintiff's claims arise from Section 705 of the Communications Act of 1934, as amended in 47 U.S.C. §§ 553 and 605. See Compl. ¶ 1. Because the plaintiff's claims arise under a federal statute, this Court holds proper subject matter jurisdiction.

(b) Personal Jurisdiction

Personal jurisdiction over a defendant is established when a defendant has sufficient "minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice, '" Int'l Shoe Co. v. Washington , 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer , 311 U.S. 457, 463 (1941)), and when the defendant is subject to the personal jurisdiction of the courts of general jurisdiction of the forum state. See Fed.R.Civ.P. 4(k)(1)(A). Additionally, there must be "effective service of process" to provide this Court with personal jurisdiction. See Int'l Shoe Co. , 326 U.S. at 316-17.

There is no doubt that the statutory and constitutional requirements for personal jurisdiction are satisfied; the defendants are commercial businesses with their principal places of business located in Hampton, Virginia.[1] See Compl. ¶ 5. A business within the state clearly has sufficient minimum contacts with the forum state, and that business is subject to the jurisdiction of the courts of Virginia under Code of Virginia § 8.01-328.1.

(c) Service of Process

The remaining question is whether there was effective service of process on the defendants. It is well settled that notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). The notice must be of a nature as to "reasonably convey the required information." Id. In other words, "the method of notice must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.'" Teksystems, Inc. v. Khan , 273 F.App'x 248, 249-50 (4th Cir. 2008) (quoting Mullane, 339 U.S. at 315). Here, service was reasonably calculated to convey the information to the defendants and was therefore proper.

The Federal Rules of Civil Procedure provide that service of process can be made on corporations by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or service is made" and "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." Fed.R.Civ.P. 4(e)(1) & 4(h)(1).

After three failed attempts for personal service on the registered agents at their registered addresses, the Complaint and Summons were delivered by posted service at the addresses of record for the defendants' registered agents on April 15, 2013. ECF No. 4. A Return on Service was filed with the Court on April 29, 2013, certifying that the defendants had been served. ECF No. 4. Further, defendants mailed a copy of the process and filed with the Clerk of this Court a certificate of such mailing on June 26, 2013. ECF No. 8.

By posting service of process at the registered address of the registered agent, the plaintiff attempted to follow a method allowed by Virginia statute for service on individuals, not on corporations. Section 8.01-299 of the Code of Virginia allows for service on a Virginia corporation by "personal service of any officer, director, or registered agent." For service on individuals, if no persons qualified to receive service of process are present at the usual place of abode, substituted service may be effected "by posting a copy of such process at the front door or at such other door as appears to be the main entrance of such place of abode." Va. Code § 8.01-296(2)(b) (2013). Posted service is proper for individuals "provided that not less than 10 days before judgment by default may be entered, the party causing service or his attorney or agent mails to the party served a copy of such process and thereafter files in the office of the clerk of the court a certificate of such mailing." Id. Plaintiff mailed a copy of the process to the defendants and filed a certificate of mailing with the clerk of this Court. ECF No. 8.

Though the process server utilized the posted service provision allowed for service on individuals, nothing proscribes that method of service on agents of corporations. The statute for service on corporations makes the clerk of the State Corporation Commission an agent in the event the registered agent cannot be found with reasonable diligence. Va. Code Ann. § 13.1-637(B) (West). However, it also provides that "[t]his section does not prescribe the only means, or necessarily the required means, of serving a corporation." § 13.1-637(C).

The process server made three attempts at personal service at the registered agents' addresses and ultimately adopted a method that would reasonably convey the desired information. Therefore, service of process and notice were sufficient under all of the ...


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