United States District Court, M.D. Florida, Tampa Division
AMBER LANCASTER, BRITTANY CRIPLIVER, BROOKE TAYLOR JOHNSON, CIELO JEAN GIBSON, CORA SKINNER, GEMMA LEE FARRELL, HEATHER RAE YOUNG, IRINA VORONINA, JESSE GOLDEN, JESSA HINTON, JOANNA KRUPA, KATARINA VAN DERHAM, MAYSA QUY, PAOLA CANAS, SANDRA VALENCIA, SARA UNDERWOOD, TIFFANY SELBY, TIFFANY TOTH, VIDA GUERRA, and KIM COZZENS, Plaintiffs,
THE BOTTLE CLUB, LLC d/b/a EYZ WIDE SHUT II; EYES WIDE SHUT, LLC d/b/a EYZ WIDE SHUT; BYOB CLUB, INC.; ANDREW HARROW; and SUSAN HARROW, Defendants.
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
cause comes before the Court in consideration of Defendant
Eyes Wide Shut, LLC's Motion to Quash Service of Process
(Doc. # 69), filed on October 16, 2017. Plaintiffs responded
on October 30, 2017. (Doc. # 78). For the reasons that
follow, the Court denies the Motion and directs Eyes Wide
Shut to respond to the Amended Complaint by November 14,
March 16, 2017, Plaintiffs filed their Complaint alleging
violations of the Lanham Act, 15 U.S.C. § 1125(a) et
seq., by Defendants. (Doc. # 1 at 8). Plaintiffs then
filed an Amended Complaint on June 6, 2017. (Doc. # 38).
After Plaintiffs attempted service on Eyes Wide Shut, Eyes
Wide Shut filed a motion to quash service on July 18, 2017.
(Doc. # 48). The Court granted that motion as unopposed on
August 2, 2017. (Doc. # 51).
August 14, 2017, counsel for Eyes Wide Shut declined to
accept service of process on Eyes Wide Shut's behalf and
informed Plaintiffs that Defendant Susan Harrow, the
registered agent and managing member of Eyes Wide Shut, was
out of the country. (Doc. # 78 at 2). For that reason,
Plaintiffs procured an alias summons from the Clerk on August
31, 2017. (Doc. # 60). Subsequently, on October 4, 2017,
Plaintiffs filed a return of service document, indicating
that a process server had effected service of process on an
unnamed employee of Eyes Wide Shut on September 23, 2017.
(Doc. # 64).
October 16, 2017, Eyes Wide Shut filed the instant Motion to
Quash Service of Process pursuant to Rule 12(b)(5),
Fed.R.Civ.P. (Doc. # 69). Eyes Wide Shut argues that service
was not properly effected under Fed.R.Civ.P. 4(h)(1) because
the party that accepted service was an employee of a
different entity. (Id. at 2). In response,
Plaintiffs argue that the Motion should be denied because
Eyes Wide Shut has been evading service of process and has
actual notice of the case. (Doc. # 78 at 3).
service of process is challenged, the party on whose behalf
service is made has the burden of establishing its
validity.” Andujar v. All Coast Transporters,
Inc., No. 12-62091-CIV, 2013 WL 2404059, at *2 (S.D.
Fla. May 31, 2013) (quoting Familia de Boom v. Arose
Mercantil, S.A., 629 F.2d 1134, 1139 (5th Cir. 1980)).
Wide Shut claims Plaintiffs' service of process was
invalid because Plaintiffs served an unknown employee, later
determined to be Catherine Coleman, at 8504 Adamo Drive,
Suite 150. (Doc. # 69 at 1). But, Eyes Wide Shut is located
at 8504 Adamo Drive, Suite 155 and Catherine Coleman is not
an employee of Eyes Wide Shut. (Id.). Rather, as she
explains in her affidavit, Ms. Coleman is employed by
Progressive Employee Leasing Company through Defendant Bottle
Club, LLC. (Doc. # 69-1 at 2). Because an employee of a
different entity was served at a different address, Eyes Wide
Shut argues it was improperly served and service should be
Plaintiffs argue that they served Eyes Wide Shut at the
correct address. Although Eyes Wide Shut's official
location is Suite 155 rather than 150, those Suites are
adjacent to each other and “the doors to both Suite
Number 150 and Suite Number 155 open to the same location,
with the sign on Suite Number 155[‘s] door pointing to
enter through Suite Number 150.” (Doc. # 78 at 3; Doc.
# 78-1). Thus, the fact that the process server identified
the address for service as Suite 150, rather than Suite 155,
has no practical significance.
process server's affidavit of service states that the
female employee served “verified she was an employee,
” but the affidavit does not specify the entity for
which she is an employee. (Doc. # 64). Given Ms.
Coleman's affidavit, this vague allegation does not
establish that Plaintiffs served an employee of Eyes Wide
Shut. Still, the affidavit further states the process server
“was unable to serve Andrew or Susan Harrow at this
address” and that “Defendants avoid service and
have refused to accept service from the process
server.” (Id.). Plaintiffs argue that the
process server's affidavit shows that Eyes Wide Shut is
support, Plaintiffs cite another affidavit of service
regarding the process server's attempt to serve Defendant
BYOB Club, Inc., whose registered agent is Defendant Andrew
Harrow. (Doc. # 78 at 3; Doc. # 65-2). There, the process
server swore that Susan Harrow, who is the registered agent
and managing member of Eyes Wide Shut, said that “they
will not be excepting [sic] any lawsuit, ” “they
will not be opening a door for anyone, ” and “she
is not excepting [sic] any paperwork on a frivolous
lawsuit.” (Doc. # 65-2). And Plaintiffs are correct
that the various Defendants have filed numerous motions to
quash service - eight in total. (Doc. ## 15-19, 48, 62, 69).
According to Plaintiffs, the numerous motions to quash
combined with the affidavits of service reporting
Defendants' behavior prove that Eyes Wide Shut is evading
service in order to frustrate the prosecution of this case.
(Doc. # 78 at 7).
Court previously warned Defendants, the “Court will not
require a plaintiff to expend limitless resources in order to
effect service upon a defendant who has actual notice of suit
and who intentionally evades service.” (Doc. # 72 at
7-8)(quoting Nappi v. Welcom Products, Inc., No.
8:13-cv- 3183-T-33TGW, 2014 WL 1418284, at *2 (M.D. Fla. Apr.
11, 2014)). Here, Eyes Wide Shut undoubtedly has notice of
the suit - it has filed two motions to quash and its
registered agent and managing member, Susan Harrow, is a
defendant who has already filed an answer. Furthermore, the
process server's affidavit attests that multiple good
faith attempts were made to serve various Defendants, but
were foiled by Defendants' refusal to answer the door or
accept any service documents. (Doc. ## 64; 65-2). Most
importantly, an affidavit of service attests that Eyes Wide
Shut's registered agent, Susan Harrow, stated her refusal
to accept any service of process, as she considers this
lawsuit frivolous. (Doc. # 65-2). The Court finds that Eyes
Wide Shut is evading service of process.
Eyes Wide Shut has notice of the Amended Complaint and is
evading service, the Court finds that Plaintiffs' service
on Eyes Wide Shut is sufficient to confer jurisdiction.
See Banco Latino, S.A.C.A. v. Gomez Lopez, 53
F.Supp.2d 1273, 1281 (S.D. Fla. 1999)(“Notice of a
complaint coupled with good faith attempted service is
sufficient to ...