Alla Anatolyevna Zorikova v. Kineticflix LLC

[7] g Anited States District Court 9 Central District of California [10] 11 | ALLA ANATOLYEVNA ZORIKOVA, Case Ne 2:19-CV-04214-ODW (GJSx) 12 Plaintiff, B ORDER DENYING DEFENDANT V. KINETICFLIX, LLC’S MOTION TO 14 GINETI CFLIX, LLC. DISMISS [30, 33, 38, 44, 48] 1D Defendants. [18] 19 I. INTRODUCTION 20 Presently before the Court is Defendant Kineticflix, LLC’s (“Kineticflix”) 21 || Motion to Dismiss for insufficient process and insufficient service of process. (Mot. 22 || to Dismiss (“Mot.”), ECF Nos. 30.) For the reasons below, the Court DENIES 23 || Kineticflix’s Motion. ' 24 HW. FACTUAL BACKGROUND 25 This action arises from allegations by Plaintiff Alla Anatolyevna Zorikova 26 || (‘Zorikova’) that Kineticflix reproduced, distributed, and publicly displayed Having carefully considered the papers filed in connection to the instant Motion, the Court deemed 28 || the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. The Court construes Zorikova’s Motion to Strike as its opposition to Kineticflix’s Motion. 1 || Zorikova’s copyrighted audiovisual work titled “Ballet Class Victor Kabaniaev DVD” 2 || (Subject Video”). (Compl. § 1.) Zorikova alleges Kineticflix published the Subject 3 || Video on Kineticflix’s website without her authorization. (Compl. 4 15.) On October 4} 21, 2016, Zorikova mailed a cease and desist letter to Kineticflix’s address at 43250 5 || Shoshoni Loop, Fall River Mills, California but did not receive a response. (Compl. Jf 16-17.) On May 15, 2019, Zorikova filed this action as a pro se plaintiff in the 7 || Central District of California. (See Compl. 1-10.) 8 Zorikova alleges Olivia Jeong (“Jeong”), not a party to this lawsuit, properly 9 || served Kineticflix through Jack Einwechter (“Einwechter”’), Kineticflix’s appointed 10 || service of process agent, on July 25, 2019. (Proof of Service, ECF No. 16; PI.’s 11 | Opp’n Ex. 2, ECF No. 33-2.) An affidavit states Jeong went to the address listed 12 | through the California Secretary of State website and encountered a man with gray 13 | hair. (Decl. of Olivia Jeong II (“Jeong Decl. IT’) 4 4-5, ECF No. 49.) When Jeong 14 || inquired as to the whereabouts of the law office of Mr. Einwechter, the man responded 15 || he was Mr. Einwechter. Jeong, then, handed Einwechter full copies of Summons and 16 || Complaint. (Jeong Decl. II 4-5.) 17 On September 6, 2019, Kineticflix filed a Motion to Dismiss for defective 18 || process and insufficient service of process. (Mot. to Dismiss 1,6 (“Mot.”), ECF No. 19 | 30.) Kineticflix alleges the attempted service of process was defective and 20 || insufficient because it was served by Zorikova herself, was not properly addressed to 21 || the Defendant and did not include a complete copy of the complaint. (Mot. 2.) On 22 || September 9, 2019, Zorikova filed a Motion to Strike. (Pl.’s Opp’n (“Opp’n”), ECF 23 || No. 33.) 24 Ht. DISCUSSION 25 At issue is whether Zorikova provided adequate service and service of process. 26 || Court now determines whether Zorikova’s complaint should be dismissed pursuant to 27 || 12(b)(4) or (5). [28] 1 | A. Adequacy of Service Under 12(b)(4) 2 Kineticflix seeks dismissal of Zorikova’s complaint because Zorikova failed to 3 || provide Kinectiflix a complete copy of the Complaint with the Summons. (Mot. 3-4.) 4 Under Federal Rule of Civil Procedure (“Rule”) 12(b)(4), a party may seek 5 || dismissal of a complaint for insufficient process. Fed. R. Civ. P. 12(b)(4). The 6 || sufficiency of process is governed by Rule 4, which requires, among other things, that 7 || a summons must “name the court and the parties” and “be directed to the defendant.” 8 | Fed. R. Civ. P. 4(a)(1)(A)-(B). Rule 4 states that service of process on a corporation 9 || can be affected in several ways, including “delivering a copy of the summons and 10 || complaint to an officer, a managing or general agent, or any other agent authorized by 11 || appointment or by law to receive service of process.” Fed. R. Civ. P. 4(h)(1)(B). The 12 || Ninth Circuit has held that “Rule 4 is a flexible rule that should be liberally construed 13 | so long as a party receives sufficient notice of the complaint.” United Food & 14 || Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984). 15 || Thus, “dismissal is generally not justified absent a showing of prejudice.” □□□ 16 || (citations omitted). If service of process is insufficient, the district court has 17 || discretion to dismiss an action or quash service. S.J. v. Issaquah Sch. Dist. No. 411, 18 | 470 F.3d 1288 , 1293 (9th Cir. 2006). 19 Here, the Court determines that Kineticflix received sufficient notice of the 20 || complaint. For example, Kineticflix’s counsel, John Hyatt (“Hyatt’’), states that 21 || Kineticflix had lawfully purchased a CD of the subject ballet class video, that 22 || Kineticflix lawfully rented the Subject Video, and that Kineticflix did not infringe on 23 || Zorikova’s intellectual property rights. (Decl. of John Hyatt § 2, ECF No. 30-3.) 24 || Based on the correspondence between the parties regarding the matter, Kineticflix 25 || appears to have adequate notice of the Complaint. 26 Furthermore, Kineticflix does not argue that the lack of service is prejudicial; 27 || instead, it argues only that the first page of the Complaint was delivered to Mr. 28 || Einwechter with the summons. (Mot. 3.) Kineticflix alleges that the service of a 1 || partial complaint is insufficient, citing Cherry v. Spence, 249 F.R.D. 226 , 229 2 || (E.D.N.C. 2008). The use of Cherry is misplaced. In Cherry, plaintiff attempted to 3 || 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 5 || 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 7 || Kineticflix’s assertion by submitting the Jeong’s affidavit, which states that Jeong 8 | served Einwechter “true and correct copies of full complaint, summon|[s], and 9 || exhibits.” (Jeong Decl. II 4 6.) 10 Also, in Cherry, plaintiff attempted to serve multiple defendants by faxing the 11 || documents to the Henderson Police Department. Cherry, 249 F.R.D. at 229 . Here, 12 | unlike in Cherry, Zorikova did not attempt to fax the service to Kineticflix, but rather 13 | hired Jeong to personally serve Einwechter. (Proof of Service, ECF No. 16.) As the 14 || Ninth Circuit has held that the court is to liberally construe Rule 4, the Court finds that 15 || Kineticflix received sufficient notice of the Complaint. United Food & Commercial 16 || Workers Union, 736 F.2d at 1382 . 17 In the absence of prejudice, dismissal is not warranted. See Alcatel-Lucent 18 | USA, Inc. v. Dugdale Commce’ns, Inc., No. 09-cv-2140 PSG (JCx), 2009 WL 19 | 3346784, at *3 (C.D. Cal. Oct. 13, 2009) (finding that dismissal was not warranted in 20 || the absence of prejudice). Here, Kineticflix has not mentioned how the alleged 21 || insufficient process has resulted in prejudice against it and only requests that the Court 22 || dismiss the case pursuant to Rule 12(b)(4). Thus, Defendants’ Motion to Dismiss 23 || under Federal Rule of Civil Procedure 12(b)(4) is DENIED. 24 | B. Whether Service was Proper Under 12(b)(5) 25 Under Rule 12(b)(5), a party may seek dismissal of a complaint for insufficient 26 || service of process. Fed. R. Civ. P. 12(b)(5). “Once service is challenged, [the] 27 || plaintiff] bear[s] the burden of establishing that service was valid under Rule 4.” 28 || Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). The process server’s return of 1 || service is generally accepted as prima facie evidence of valid service. SEC v. Internet 2 || Solutions for Business, Inc., 509 F3d 1161, 1166 (9th Cir. 2007); see Sikhs for Justice 3 || v. Badal, 736 F3d 743, 746 (7th Cir. 2013) (process server’s “affidavit of service is 4|| entitled to a presumption of correctness.”’) 5 A presumption of valid service “can be overcome only by strong and 6 || convincing evidence.” SEC, 509 F3d at 1166 (citing O'Brien v. R.J. O'Brien & 7 || Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993)). Thus, a defendant must do more 8] than just merely allege that service was defective. Perciballi v. Ng, No. SACVO0801168JVSANX, 2010 WL 11595731 , at *3 (C.D. Cal. Mar. 8, 2010) 10 || (quoting FROF, Inc. v. Harris, 695 F.Supp. 827, 829 (E.D.Pa.1988) (“a bare 11 || allegation by a defendant that he was improperly served cannot be allowed to bely the 12 || private process server's return”)). “Unless the defect in service is established on the 13 || face of the return, defendant’s motion to dismiss (or ‘quash service’) must be 14 || supported by declaration or other form of admissible evidence establishing the lack of 15 || proper service.” Sarafyan v. Elson, No. CV 18-9574-GW(KSX), 2019 WL 3308770 , 16 || at *3 (C.D. Cal. Feb. 21, 2019) (quoting O’Connell & Stevenson, Rutter Group 17 || Practice Guide: Federal Civil Procedure Before Trial § 5:350 (2018)). 18 Once service is challenged the plaintiff bears the burden of establishing that 19 || service was valid under Rule 4. United Med. Devices, LLC v. Blue Rock Capital, Ltd., 20 | No. 16-cv-1255 PSG (SSX), 2016 WL 9047123 , at *1 (C.D. Cal. Aug. 5, 2016) 21 || (citing Brockmeyer, 383 F.3d at 801 ). “In determining whether the plaintiff has met 22 || its burden under Rule 4, the Court is permitted to ‘weigh and determine disputed 23 | issues of fact.” United Med. Devices, LLC, 2016 WL 9047123 , at *1 (citing 24 || Schwarzer, Tashima & Wagstaffe, Cal. Rutter Group Practice Guide: Fed. Civ. Pro. 25 || Before Trial § 9:152 (2010)). 26 Kineticflix makes two arguments why service was not proper under Rule 27 || 12(b)(S). The Court now addresses each argument in turn. [28] 1 i. Plaintiff Attempted to Personally Serve the Summons 2 Rule 4(c)(2) states that “[a]ny person who is at least 18 years old and not a 3 || party may serve a summons and complaint.” Fed. R. Civ. P. 4(c)(2). Kineticflix alleges that “the Plaintiff personally delivered the defective summons to Mr. 5 || Einwechter.” (Mot. 4.) Kineticflix solely relies on the affidavit of Einwechter as 6 || proof that Zorikova served the complaint and summons herself. See Lerma vy. 7|| Stylistics Los Angeles Car Club, Inc., No. CV 12-06704 DDP JEMX, 2015 WL 8 | 349310, at *3 (C.D. Cal. Jan. 23, 2015) (finding that only an affidavit of the defendant 9 || stating he was never personally handed papers did not constitute strong and 10 || convincing evidence to establish that service was not affected.) 11 On the other hand, as discussed above, Jeong filed an affidavit describing that 12 || she personally served Einwechter. (Declaration of Olivia Jeong (“Jeong Decl. I’’) 1, 13 || ECF. No. 40.) In Jeong’s second affidavit, she further alleges that she ran into a man with grey hair and asked where the law office of Jack Einwechter is, and he 15 || responded, “I am Mr. Einwechter.” (Jeong Decl. II □□□ 4-5.) Accordingly, Jeong’s 16 || sworn affidavit on its face demonstrates sufficient service on Kineticflix. SEC, 509 17 || F3d at 1166 (process server’s sworn affidavit on its face proves sufficient service on a 18 | defendant). Kineticflix only alleges that Zorikova herself served the summons and 19 | complaint in Einwechter’s declaration. (Decl. of John P. Einwechter (“Einwechter 20 |} Decl.”) § 4, ECF No. 30-2.) Accordingly, the return process filed and Jeong’s 21 || supplemental affidavits are sufficient to hold that Jeong, not Zorikova, served the 22 || process on Einwechter. SEC, 509 F3d at 1166 . Therefore, Kineticflix has not 23 || presented strong and convincing evidence to overcome the evidence presented by 24 || Zorikova. 25 ii. The Summons was not Addressed to the Defendant 26 Under Rule 4(h)(1)(B) a plaintiff may serve a defendant “by delivering a copy 27 || of the summons and of the complaint to an officer, a managing or general agent, or [28] 1 || any other agent authorized by appointment or by law to receive service of process.” 2 || Fed. R. Civ. P. 4(h)(1)(B). 3 Here, Kineticflix first argues that “there is no entity named ‘KineticFlix, LLC.’ 4|| Rather, Elles, LLC, a California limited liability company, does business as 5 || ‘KineticFlix.com.’ Mr. Einwechter is the designated agent for service of process for 6 || Elles, LLC and KineticFlix.com.” (Mot. 3.) 7 In opposition, Zorikova requests that the Court take judicial notice of an LLC8 | 12 Form. (Opp’n, Ex. 2 LLC-12 Form (“LLC Form’), ECF No. 33-2.) Federal Rule 9 || of Evidence 201 provides: “[t]he court may judicially notice a fact that is not subject 10 || to reasonable dispute because it . . .can be accurately and readily determined from 11 || sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 12 || Courts may take judicial notice of government documents and public records. See 13 || Peruta v. Cty. of San Diego, 678 F. Supp. 2d 1046 , 1054 n.8 (S.D. Cal. 2010) (stating 14 || that courts may properly take judicial notice of undisputed documents appearing on 15 || governmental websites). Here, the LLC Form is a document appearing on the 16 || California Secretary of State website. (LLC Form.) The LLC Form lists “Kineticflix 17 || LLC” and entity number “201900110201,” and includes Einwechter & Hyatt, LLP 18 || (“E&H”) office address as the service of process agent address. (LLC Form; 19 | Einwechter Decl. § 1.) Accordingly, the Court GRANTS Zorikova’s request for 20 || judicial notice of the LLC Form. 21 Zorikova asserts that Einwechter is listed as the service of process agent for 22 || Kineticflix, LLC and that Jeong served Einwechter at the E&H office, located on 172 23 || N. Tustin Street, Orange, California. (Jeong Decl. I 1; Jeong Decl II 4] 2-3.) 24 || Additionally, Einwechter has stated that he is the service of process agent for Elles, LLC dba Kineticflix.com but did not produce supporting documentation to 26 || corroborate his statement in his affidavit. (Einwechter Decl. §] 3.) Therefore, the 27 || Court finds that Einwechter is the proper service of process agent for Defendant 28 || Kineticflix. 1 Kineticflix uses Ledonne to argue that “[a]lthough plaintiffs are permitted to 2|| effectuate service on an agent of a defendant, the summons must nevertheless be 3 || addressed to the defendant.” Ledonne v. Gulf Air, Inc., 700 F. Supp. 1400, 1413 (E.D. 4|| Va. 1988). The Court finds the argument is misplaced. Ledonne discusses that, “[t]he 5 || FSIA establishes its own special set of rules for serving process and default judgments 6 || on foreign states and their instrumentalities.” /d. at 1411. Here, Kineticflix has not 7 || established that it is a foreign state or an instrumentality, thus Zorikova does not have 8 | to follow the FSIA’s special rules for serving process. 28 U.S.C.A. § 1608 (b). 9 Further Kineticflix does not bring forth any support that the summons must be 10 || “addressed to the defendant.” Ledonne is not explicit with discussing the Summons 11 || being “addressed” and Rule 4 states that a summons must, “be directed to the 12 || defendant.” Fed. R. Civ. P. 4(a)(1)(B). Here, based on the LLC Form, Einwechter is 13 || listed as the agent of service for Kineticflix, LLC. (LLC Form.) The Summons is 14 || directed to, “Kineticflix LLC, Jack Einwechter, 172 N. Tustin St., #305, Orange, CA 15 || 92867.” (Compl., Ex. 2 Summons, ECF No. 1-2.) Kineticflix and Einwechter are 16 | named in the Summons, thus the Court finds that the Summons was directed to 17 || Kineticflix and Einwechter. Moreover, Kineticflix has not presented any case law 18 || stating that the address of the defendant must be listed, along with the address of the 19 || agent upon which the summons is being served. Therefore, Kineticflix’s Motion to 20 || Dismiss for insufficient service of process is DENIED. 21 IV. CONCLUSION 22 For the reasons discussed above, the Court DENIES Kineticflix’s motion to 23 | dismiss for insufficient process and insufficient service of process. (ECF Nos. 30.) 24 || Based on the Court’s determination of Kineticflix’s Motion (ECF No. 30), the Court 25 | renders the parties’ remaining motions moot. (ECF Nos. 33, 38, 44, and 48.) 26 || Accordingly, Kineticflix has fourteen days, from the date of this order, to file an 27 || answer to Zorikova’s Complaint. [28] 1 Zorikova is advised that the Federal Pro Se Clinic offers free information and 2 | guidance to individuals who are representing themselves in federal civil actions. The 3 | Los Angeles Clinic operates by appointment only. Appointments are available either 4 || by calling the Clinic or by using an internet portal. The Clinic can be reached at (213) 5] 385-2977, ext. 270 or through an internet request at the following site: 6 || http://prose.cacd-uscourts.gov/los-angeles. Clinic staff can respond to many questions with a telephonic appointment or through an email account. It may be more 8 || convenient to email questions or schedule a telephonic appointment. Staff can also 9 || schedule an in-person appointment at their location in the Roybal Federal Building 10 | and Courthouse, 255 East Temple Street, Suite 170, Los Angeles, California 90012. 11 | Zorikova is encouraged to visit the Clinic or otherwise consult with an attorney prior 12 | proceeding in this matter. [14] 15 IT IS SO ORDERED. [16] 17 October 10, 2019 [18] 19 Gill: Wow 50 OTIS D. WRIG HT, 1 UNITED STATES DISTRICT JUDGE