Verbick v. The Movement Technology Company, Inc.

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA TODD E. VERBICK, an individual, Case No.: 20-CV-611 TWR (DEB) 12 Plaintiff, ORDER (1) DISCHARGING ORDER v. TO SHOW CAUSE; (2) DISMISSING REMAINING DEFENDANTS THE MOVEMENT TECHNOLOGY WITHOUT PREJUDICE; AND COMPANY, INC., a Washington 15 (3) VACATING ENTRY OF corporation; PREDICTUV DEFAULT AGAINST DEFENDANTS TECHNOLOGIES, INC., a Delaware KEIL; PREDICTUV corporation; PREDICTUV LLC, a 17 TECHNOLOGIES, INC.; AND Delaware limited liability company; PREDICTUV LLC; AND KELVIN HILL, an individual; ZSOLT (4) GRANTING PLAINTIFF LEAVE CSENDE, an individual; VIVIEN 19 TO FILE AND SERVE THIRD SZAKACS, an individual; AMENDED COMPLAINT CHRISTOPHER KEIL, an individual; NIALL LAWLOR, an individual; 21 (ECF Nos. 79, 81, 84, 86) GERRY LAWLOR, an individual; ROB GRINNELL, an individual; BRANDON MCCOY, an individual; and DOES 1 to 100, inclusive, Defendants.

27 On August 11, 2022, the Court ordered Plaintiff Todd E. Verbick to show cause why the Court should not dismiss Remaining Defendants Keil; N. Lawlor; G. Lawlor; Grinnell; McCoy; Predictuv Technologies, Inc.; and Predictuv LLC for failure to timely effect service of process pursuant to Federal Rules of Civil Procedure 4 and 5. (ECF No. 79, “OSC.”) Presently before the Court is Plaintiff Todd E. Verbick’s Response to that Order to Show Cause. (ECF No. 81, “Resp.”) Having carefully considered Plaintiff’s arguments and the law, the Court (1) DISCHARGES the Order to Show Cause; (2) DISMISSES WITHOUT PREJUDICE Plaintiff’s action against the Remaining Defendants, (3) VACATES the entries of default against Defendants Keil; Predictuv Technologies, Inc.; and Predictuv LLC; and (4) GRANTS Plaintiff twenty-one (21) days from the date of the electronic docketing of this Order to file and properly serve a Third Amended Complaint.

11 BACKGROUND I. Factual and Procedural Background 13 The Court incorporates the factual and procedural background from the Court’s November 19, 2021 Order (1) Granting Motion to Dismiss First Amended Complaint, and (2) Dismissing Without Prejudice Plaintiff’s First Amended Complaint. (See ECF No. 62 at 2–4.) In addition, after the Court dismissed Plaintiff’s First Amended Complaint, Plaintiff electronically filed a Second Amended Complaint in December 2021.1 (See ECF No. 63.) The Court subsequently dismissed one of the Defendants—The Movement Company Inc.—with prejudice, leaving Defendants Keil; N. Lawlor; G. Lawlor; Grinnell; McCoy; Predictuv Technologies, Inc.; and Predictuv LLC as the only remaining Defendants. (See ECF No. 72.) The Court then ordered Plaintiff to show cause why those remaining Defendants should not be dismissed for failure to properly effect service of either the original Complaint or the Second Amended Complaint. (See OSC at 10–11.)

24 II. Failure to Effect Service on Defendants N. Lawlor, Grinnell, G. Lawlor, and McCoy 26 Plaintiff concedes that he never properly served Defendants Niall Lawlor, Rob 1 Plaintiff did not include three prior Defendants (Defendants Kelvin Hill, Zsolt Csende, and Vivien Grinnell, Gerry Lawlor, and Brandon McCoy. (See Resp. at 3–4.) Plaintiff additionally never requested that the Court grant permission for a substitute method of service when he was unable to effectuate service or could not obtain the whereabouts of a Defendant.

4 Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s action against Defendants N. Lawlor, Grinnell, G. Lawlor, and McCoy for failure to effect service. See Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (“A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under [Federal Rule of Civil Procedure 4].”).

9 III. Failure to Effect Service on Defendant Keil 10 Plaintiff contends that he properly effected service of the “original Summons and Complaint” on Defendant Keil. (See Resp. at 3.) The Court, however, already granted Keil’s motion to dismiss the original Complaint for “insufficient process.” (See ECF No. 48 at 18.) The Court instructed Plaintiff that, “[s]hould [he] amend his Complaint, Plaintiff must serve Ms. Szakacs and Mr. Keil in conformity with Rule 4.” (Id.) A response to an order to show cause is not a proper motion for reconsideration, and Plaintiff did not previously request that the Court reconsider its order. See S.D. Cal. CivLR 7.1(i) (generally requiring applications for reconsideration to be filed “within twenty-eight (28) days after the entry of the ruling, order or judgment sought to be reconsidered”).

19 Accordingly, despite Plaintiff’s attempt to relitigate a settled issue, service of the initial Complaint on Keil was insufficient. There is no evidence of subsequent proper service of the First or Second Amended Complaint on Defendant Keil,2 and thus the Court DISMISSES WITHOUT PREJUDICE this action against Defendant Keil. The Court Plaintiff provides a Proof of Service stating he served the First and Second Amended Complaints on Defendant Keil in August 2022. (ECF No. 81-2 at 12–14.) For the same reasons discussed below, see infra Section IV, and the fact that Plaintiff never properly served the original Complaint under Federal Rule of Civil Procedure 4, neither the First or Second Amended Complaint were properly served. See Bricklayers & Allied Craftworkers Local Union No. 3 v. Palomino, No. C-901589-CW (DMR), 2010 WL 27 2219595, at *3 n. 6 (N.D. Cal. June 2, 2010) (“[S]ervice of an amended complaint under [Rule 5] is permitted if the original complaint was properly served and the defendant has made an appearance in the also VACATES the entry of default against Defendant Keil. (ECF No. 86.) Finally, the Court DISCHARGES the Order to Show Cause requiring Defendant Keil to explain why default should not be entered against him for failure to prosecute and advise the Court of his current address because dismissal of Defendant Keil renders that Order moot. (OSC at 12.)

6 IV. Failure to Effect Service on Defendants Predictuv Technologies, Inc. and Predictuv LLC 8 Plaintiff contends he properly served the original Summons and Complaint on Predictuv Technologies, Inc. and Predictuv LLC (the “Predictuv entities”). (Resp. at 2.)

10 Plaintiff’s response to the Court’s Order to Show Cause, however, is silent as to whether Plaintiff properly served the Second Amended Complaint on the Predictuv entities under Federal Rule of Civil Procedure 5.

13 As to service of the original Complaint, Plaintiff has provided proof of service showing he personally served the Predictuv entities on February 27, 2020, through an alleged agent of the entities in accordance with Federal Rule of Civil Procedure 4 and California Code of Civil Procedure section 416.10. (ECF No. 56 at 13–14, 16–17.) In addition, the Predictuv entities moved to dismiss the original Complaint and, in doing so, initially included an argument that service of process was insufficient. (ECF No. 7 at 10– 11.) But later these Defendants withdrew that argument. (ECF No. 19.) By withdrawing that argument and continuing with their motion to dismiss, the Predictuv entities waived any argument that service of the original Complaint was insufficient. See Fed. R. Civ. P. 12(h)(1); Am. Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1106 (9th Cir. 2000) (“A fundamental tenet of the Federal Rules of Civil Procedure is that certain defenses under Fed. R. Civ. P. 12 must be raised at the first available opportunity or, if they are not, they are forever waived.”); Rector v. Scott, No. LA CV 13–03116–VBF–SS, 2014 WL 26 580158, at *1–2 (C.D. Cal. Feb. 11, 2014) (explaining that defendant must raise insufficient service of process defensive in first responsive pleading to avoid waiving the defense). The Court is thus satisfied that no issue remains concerning service of the original Complaint on the Predictuv entities.

2 The same is not true for service of the Second Amended Complaint. Federal Rule of Civil Procedure 5 governs “every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants.” Emp. Painters’ Tr. v. Ethan Enters., Inc., 480 F.3d 993, 999 (9th Cir. 2007) (citing Fed. R. Civ. P. 5(a)). An amended complaint is a “subsequent” pleading and thus falls under Rule 5’s purview. Id. Rule 5 permits service by “sending [the document] to a registered user by filing it with the court’s electronic-filing system.” Fed. R. Civ. P. 5(b)(E). But the Court granted the Predictuv entities’ counsel’s motion to withdraw as the attorney of record in December 2020, (see ECF No. 46), so those Defendants were proceeding pro se at the time Plaintiff filed his Second Amended Complaint (see generally ECF No. 63). Because they were not registered users of the CM/ECF filing system, service needed to be made via another method prescribed by Rule 5, such as hand delivery, mail, or leaving it at the Defendants’ places of work. Fed. R. Civ. P. 5(b)(2).

15 Plaintiff attached a Proof of Service Certificate to the Second Amended Complaint indicating that he served Defendant The Movement Technology Company, but the Proof of Service did not indicate that he had served any other Defendant. (ECF No. 63-1 at 1–2.) Plaintiff did attach to his Response to the Order to Show Cause a Declaration regarding Proof of Service, stating he served the Second Amended Complaint on the Predictuv entities via mail on August 23, 2022. (ECF No. 81-2 at 15–17.) But that Proof of Service postdates the Court’s Order to Show Cause, and service on the Predictuv Defendants in August 2022 for an amended complaint filed in December 2021 is woefully untimely. (See generally OSC; ECF No. 81-2 at 15–17); see also Fed. R. Civ. P. 5(d)(1)(B) (“[I]f the [amended complaint] is filed, a certificate of service must be filed with it or within a reasonable time after service.”). There is no suggestion in Rule 5 or elsewhere that service over 260 days after the filing of an amended complaint is allowed. Even using the standard rules for service of process of an original complaint under Federal Rule of Civil Procedure 4(m), Plaintiff’s service of his Second Amended Complaint was over 170 days 1 Plaintiff has also provided no argument or evidence that he had good cause for such 2 delay.

3 With no evidence of proper service of the Second Amended Complaint on the || Predictuv entities, the Court DISMISSES WITHOUT PREJUDICE this action against Defendants Predictuv Technologies, Inc. and Predictuy LLC. The Court also VACATES || the entry of default against the Predictuv entities. (ECF No. 84.) Furthermore, the Court || DISCHARGES the Order to Show Cause requiring the Predictuv entities to obtain counsel || since dismissal of those Defendants renders that Order moot. (OSC at 9.)

9 CONCLUSION 10 In light of the foregoing, the Court DISMISSES WITHOUT PREJUDICE 11 Defendants N. Lawlor; Grinnell; G. Lawlor; McCoy; Keil; Predictuv Technologies, Inc.; 12 Predictuy LLC. The Court also VACATES the entry of default against Defendants || Keil; Predictuv Technologies, Inc.; and Predictuv LLC. Finally, the Court DISCHARGES 14 Orders to Show Cause relating to Defendants Keil; Predictuv Technologies, Inc.; and |}Predictuv LLC. Plaintiff MAY FILE and PROPERLY SERVE a Third Amended |}Complaint within twenty-one (21) days of the electronic docketing of this Order. Any || properly named and served Defendants will then have fourteen (14) days from the date of || service of any timely Third Amended Complaint to respond. Should Plaintiff fail to timely || file and serve an amended complaint, this action will remain dismissed without prejudice.

20 IT IS SO ORDERED.

21 |}Dated: November 15, 2022 2 “Tan (2 ® be 53 Honorable Todd W. Robinson United States District Judge