UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
March 11, 2008
ROBERT R. PRUNT&EACUTE;,*FN1 PLAINTIFF,
UNIVERSAL MUSIC GROUP, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the motion of one of the named defendants in this case, Viacom International, Inc. ("Viacom International"), to dismiss pro se plaintiff's complaint under Rules 12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure for insufficiency of process and insufficiency of service of process, respectively.*fn2 Upon consideration of the motion, the opposition, the reply, plaintiff's surreply, and the entire record in this case, the Court grants Viacom International's motion to dismiss on the ground of insufficiency of service of process.*fn3
The nature of this case was described at length in this Court's earlier Opinion, see Prunté v. Universal Music Group, 484 F. Supp. 2d at 35-38, and a brief summary will suffice for present purposes. Plaintiff Robert R. Prunté produces music and sells compact discs to the public on the streets. See Complaint of March 15, 2006 at 15, 25 ("Original Compl."); see also id., Exs. F, M. Mr. Prunté and his business partner, Karen Pate, took part in a service provided by defendant UMG Recordings, Inc. ("Universal"), whereby Mr. Prunté and his associates sent samples of their musical work to a division of Universal known as Inside Sessions, and received written feedback on those musical samples. See Complaint of May 4, 2006 ¶ 89 ("First Am. Compl."). Mr. Prunté submitted 38 songs to Inside Sessions in 2001 and received written critiques from Inside Sessions in 2002. See First Am. Compl. ¶ 89; see also Original Compl., Motion to Dismiss ("Pl.'s Opp."); Reply Memorandum in Further Support of Motion to Dismiss by Viacom International, Inc. ("Viacom Int'l's Reply"); and Plaintiff's Reply Memorandum in Opposition to Defendant Viacom's Memorandum in Support of Its Motion to Dismiss ("Pl.'s Surreply"). The Court also relies on certain materials attached to the above papers. See Darden Exs. B, C. Between the time he filed his Original Complaint and his First Amended Complaint, Mr. Prunté pre-registered a volume of musical works with the United States Copyright Office for copyright protection. See First Am. Compl., Ex. T.
Plaintiff alleges that various recording artists have infringed upon lyrics that he produced. Plaintiff further alleges a conspiracy among certain entities -- including Universal, Viacom International and many others -- to steal the lyrics and artistic expressions that Mr. Prunté provided to Inside Sessions and to use those lyrics and expressions in songs produced for their own artists. See First Am. Compl. ¶¶ 48, 51, 59-61, 89, 101.*fn4
Viacom International has moved to dismiss all of plaintiff's claims against it on the ground that plaintiff has failed to effect proper service. As Viacom International correctly points out, Mr. Prunté has "submit[ted] an Affidavit of Service by Loai F. Sarsour, who avers that copies of a Summons and the Complaint in this action were delivered personally on March 24, 2006 . . . to one Pen DiMatteo, described by the affiant as a 'Process Specialist,' at Spiegel & Utrera, P.A.P.C., 45 Johns Street, Suite 711, New York, NY 10038." Viacom Int'l's Mot. at 3. Viacom International avers, however, that "[Viacom International] has never had any relationship with DiMatteo or with DiMatteo's apparent employer, Spiegel & Utrera -- let alone an association that would qualify either as 'an officer, a managing or general agent, or . . . [an] agent authorized by appointment or by law to receive service of process . . . .'" Id. (quoting FED. R. CIV. P. 4(h)); see also id., Declaration of Joseph R. Molko ¶ 2.*fn5
Plaintiff apparently served Spiegel & Utrera on the mistaken belief that Spiegel & Utrera is the registered agent of Viacom International, when in fact Spiegel & Utrera is not the registered agent for Viacom International, but is the registered agent for Viacom Communications Group -- a corporate entity that is not affiliated with Viacom International. See Viacom Int'l's Reply at 1-2; id., Reply Declaration of Joseph R. Molko ¶ 1 (stating that Viacom International "has never maintained any corporate or other relationship with 'Viacom Communications Group, Inc.'"); id., Ex. A, Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 by Viacom, Inc. (excerpt) (indicating that Viacom Communications Group is not affiliated with Viacom International).
As more than 120 days have passed since plaintiff filed his Original Complaint, and as plaintiff has failed to serve Viacom International in a manner that complies with the Federal Rules of Civil Procedure or District of Columbia law, it seems clear that plaintiff's claims against Viacom International must be dismissed. See Viacom Int'l's Mot. at 3-5. While it is not always easy to comprehend his arguments, plaintiff appears to argue in response that (1) Viacom Communications Group is indeed related to Viacom International, and (2) even if plaintiff served the wrong entity, his mistake should be excused because Viacom International has received actual notice of this suit. See generally Pl.'s Surreply.
A. Service of Process Upon Corporations Rule 4(h) of the Federal Rules of Civil Procedure Governs Service of Process Upon Corporations
That Rule states that service may be effected upon a corporation located in a judicial district of the United States (1) "in the manner prescribed by Rule 4(e)(1) for serving an individual," FED. R. CIV. P. 4(h)(1)(A), or (2) by delivering a copy of the summons and 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 and -- if the agent is one authorized by statute and the statute so requires -- by also mailing a copy of each to the defendant." FED. R. CIV. P. 4(h)(1)(B).*fn6 Rule 4(m) of the Federal Rules of Civil Procedure provides that
[i]f a defendant is not served within 120 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against the defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
FED. R. CIV. P. 4(m). If validity of service is challenged, the party on whose behalf service was made bears the burden of proving that service was sufficient or that good cause exists for extending the time in which to effect proper service. See, e.g., Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987); Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 2-3 (D.D.C. 2004) (and cases cited therein); 5B CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE & PROCEDURE§ 1353 (3d ed. 2004).*fn7
In this case, neither party disputes that plaintiff served Spiegel & Utrera -- the registered agent for a corporate entity called Viacom Communications Group, but not the registered agent for named defendant Viacom International. See Viacom Int'l's Mot. at 3-4; Pl.'s Opp. at 2. Nor does either party dispute that plaintiff failed to serve the Corporation Service Company, the registered agent for Viacom International. See Viacom Int'l's Reply at 2; Pl.'s Opp. at 2. Finally, more than 120 days have passed since plaintiff filed his Original Complaint. It seems clear, therefore, that plaintiff's claims against Viacom International must be dismissed for insufficient service of process.
Plaintiff resists this conclusion on two grounds. First, plaintiff argues that Viacom Communications Group is indeed affiliated with Viacom International, and hence that service upon the former is effectively the same as service upon the latter. See Pl.'s Opp. at 2; Pl.'s Surreply at 1-2. Plaintiff offers no factual support for this argument, while Viacom International provides two declarations of Joseph R. Molko to the contrary. Plaintiff's argument therefore is rejected. Second, plaintiff argues that his claims against Viacom International should not be dismissed because Viacom International has received actual notice of this suit. See Pl.'s Surreply at 4. The Court rejects this argument as well. It is established that actual notice alone cannot cure otherwise defective service. See Byrd v. Dist. of Columbia, 230 F.R.D. 56, 59 n.4 (D.D.C. 2005); Whitehead v. CBS/Viacom, Inc., 221 F.R.D. at 3; BPA Int'l Inc. v. Kingdom of Sweden, 281 F. Supp. 2d 73, 84 (D.D.C. 2003) ("Actual notice does not fulfill the requirements of Rule 4(h)(1).").
Notably, plaintiff has not argued that his failure to effect proper service should be excused for good cause. If he had, the Court would have rejected the argument for two reasons. First, the Court can perceive no good cause for plaintiff's failure to serve Viacom International, and plaintiff suggests none. Second, a plaintiff must employ a reasonable amount of diligence in determining who to serve and how to effect service. See, e.g., Bachenski v. Malnati, 11 F.3d 1371, 1376-77 (7th Cir. 1993) (a "plaintiff's attempts at service need be at the least . . . accompanied by some showing of reasonable diligence" before good cause may be found) (internal quotation marks and citation omitted). Plaintiff has failed to argue that he employed a reasonable amount of diligence, and it seems clear that he did not.*fn8 Moreover, the Court does not believe that plaintiff's pro se status should excuse his lack of diligence, as plaintiff is an experienced federal court litigator. See Prunté v. Walt Disney Co., Civil Action No. 04-0629, Memorandum Opinion at 2-4 (D.D.C. Mar. 31, 2005) (detailing Mr. Prunte's litigation history).
Plaintiff has failed to serve Viacom International properly, and has failed to identify a reason to excuse that failure. The Court therefore will grant Viacom International's motion to dismiss for insufficiency of service of process. A separate Order to that effect will be issued this same day.
Although plaintiff has at all times complained of the actions of "Viacom International," see, e.g., Original Compl. at 1, it appears that he mistakenly assumed that Viacom Communications Group and Viacom International were identical or affiliated, and thus that they shared registered agents. In fact, had plaintiff inspected his search results a bit more closely, he would have noticed the separate listing for Viacom International just a few lines down from the listing for Viacom Communications Group. Had he looked at that listing, he would have learned that Viacom International's registered agent is the Corporation Service Company, not Spiegel & Utrera. See Viacom Int'l's Reply at 2 ("The entry for Viacom International, Inc. [in the New York Department of State's Corporation and Business Entity database] . . . identifies the company's registered agent as the Corporation Service Co. ("CSC") . . . . CSC is, and has been at all relevant times, [Viacom International's] registered agent in the State of New York."); id., Reply Declaration of Joseph R. Molko ¶¶ 3-6. Such an easily avoidable error indicates that plaintiff failed to exercise reasonable diligence.