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Prunté v. Universal Music Group

March 11, 2008

ROBERT R. PRUNTÉ,*FN1 PLAINTIFF,
v.
UNIVERSAL MUSIC GROUP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

MEMORANDUM OPINION

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

I. BACKGROUND

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.

II. DISCUSSION

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); ...


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