Case Information
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION
ZAMPERLA, INC.; and ANTONIO
ZAMPERLA, SpA,
Plaintiffs, v. Case No. 6:13-cv-1811-Orl-37KRS S.B.F. S.R.L.,
Defendant. ORDER
This cause is before the Court on the following:
1. Defendant S.B.F. S.r.L.’s Special Appearance and Motion to Quash and Dismiss (Doc. 35), filed January 31, 2014;
2. Defendant S.B.F. S.r.L.’s Memorandum of Law in Support of its Motion to Quash (Doc. 36), filed January 31, 2014; and
3. Zamperla Plaintiffs’ Response in Opposition to Defendant S.B.F.’s Motion to Quash (Doc. 46), filed February 18, 2014.
BACKGROUND
On November 21, 2013, Plaintiffs—an Italian corporation and a New Jersey corporation—initiated this action for breach of contract and unfair competition under the Lanham Act and Florida law. (Doc. 1.) Defendant S.B.F. S.r.L. is a “foreign corporation organized under the laws of Italy with its principal place of business in Padova, Italy.” (Doc. 29, ¶¶ 2, 3, 5; Doc. 1.) On January 31, 2014, Defendant made a special appearance to move the Court to quash service of process pursuant to Federal Rules of Civil Procedure 12(b)(5). (Docs. 35–36.) In support of its motion, Defendant filed the declarations of its employee, Augusto De Santi (Doc. 35-3), Defendant’s counsel, Valeria Calafiore Healy (Doc. 35-1), and its President, Sandro Frison (Doc. 35-2). Plaintiffs responded (Doc. 36), and filed the declarations of process server, Timothy P. Carithers (Doc. 48), Plaintiffs’ president, Valerio Ferrari (Doc. 47), and paralegal, Ivonne Nieves (Doc. 49). Defendant’s request for leave to file a reply was denied. (Doc. 79). On April 4, 2014, the parties presented their respective positions at a hearing (Doc. 83), and the motion is now ripe for adjudication.
STANDARDS
“Service of process is a jurisdictional requirement: a court lacks jurisdiction over
the person of a defendant when that defendant has not been served.”
Pardazi v.
Cullman Med. Ctr.
,
Under the Federal Rules, service of process on a foreign corporation can be
made by “following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located.” Fed. R. Civ. P.
4(h)(1), (e)(1). Section 48.081, Florida Statutes, provides a hierarchy for service of
process upon foreign corporations. “A private corporation may be served by serving
process on the president, vice president, or other head of the corporation, and in the
absence of any such persons, on other corporate employees, including any officer or
director.”
Landmark Fin’l Solutions, LLC v. Sanchez
, No. 2:13-cv-214-FtM-38CM, 2014
WL 759847, at *1 (M.D. Fla. Feb. 26, 2014) (citing Fla. Stat. § 48.081(1)(a)-(d)). “If a
foreign corporation has none of the foregoing officers or agents in [Florida], service may
be made on any agent transacting business for it in [Florida].” § 48.081(2), Fla. Stat.;
see also Cavic v. Grand Bahama Dev. Co., Ltd.
, 701 F.2d 879, 887 (11th Cir. 1983).
“For service of process on an agent or employee of a corporation to be effective, the
return of service must show the absence of the ‘statutorily prescribed superior classes
of persons who may be served.’”
Gonzalez v. The Pep Boys-Manny, Moe & Jack, Inc.
,
No. 6:07-cv-627-Orl-31UAM,
DISCUSSION
Here, Defendant admits that its employee, Augusto De Santi, was in Orlando at a trade show for the International Association of Amusement Parks and Attractions from November 18 to 22, 2013. (Doc. 36, pp. 3–4.) The return of service provides that Mr. Carithers delivered true and correct copies of the Summons and Complaint to Mr. De Santi on November 21, 2013, at 11:47 a.m., at Defendant’s booth in the Orlando Convention Center – Exhibit Hall, 9899 International Drive, Orlando, Florida 32819. (Doc. 28.) Defendant contends that such service was ineffective because Mr. Carithers does not attest that he first attempted to serve Defendant’s vice president, cashier, treasurer, general manager, or director as explicitly required under Section 48.081. (Doc. 36, pp. 10–11.) Plaintiffs’ return of service is silent concerning Mr. Carithers’ attempt to serve the statutory superior corporate officers. ( See Doc. 28.) Mr. Carithers further describes his service efforts in a sworn declaration: [1]
I walked up to the SBF booth on the trade show floor and I inquired as to the whereabouts of Mr. Vittorio Frison, who I understood from the Summons to be a Principal/Officer of SBF. I was told Mr. Frison was not there. Pursuant to the Summons and Section 48.081, I then asked to speak with the president, vice president, or any other officers of the corporation, and if not, whoever is in charge. In response, they brought to me Mr. Augusto De Santi, who provided me with a business card reflecting his title as the Export Manager of SBF.
(Doc. 48, ¶ 4.)
Like the return of service, the sworn declaration includes no reference to
Defendant’s cashier, treasurer, general manager, or director; and Plaintiffs cite no law to
support a finding that Mr. Carither’s service on Mr. De Santi after a general inquiry to an
unidentified person at the Convention Center sufficiently complies with Florida law. (
See
Doc. 46.) Accordingly, Plaintiffs have not met their burden to establish effective service
of process, and Defendant’s motion is due to be granted.
[2]
See Bank of Am., N.A.
, 39
So. 3d at 504;
Howard v. Otis Elevator
, No. 6:09-cv-948-Orl-19KRS,
Rule 4(m) imposes a 120-day time limit to effectively serve process; however, by its terms, the Rule does not apply to service in a foreign country. Accordingly, the Court will establish its own deadline for Plaintiffs to serve Defendant—July 11, 2014. On or before that date, Plaintiffs shall either obtain a waiver of service pursuant to Rule 4(d), or file a proof of service in accordance with Rule 4(l)(2).
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that: 1. Defendant S.B.F. S.r.L.’s Special Appearance and Motion to Quash and Dismiss (Doc. 35) is GRANTED .
the name and age of person provided substitute service).
But see Koster v. Sullivan
,
103 So. 3d 882, 884 (Fla. 2d DCA 2012) (certifying question to the Florida Supreme
Court whether factors defining the manner of service must be included in a return of
service before service is presumed valid),
cert. granted
,
3. On or before July 11, 2014, Plaintiffs shall either file proof of service in accordance with Rule 4(l)(2), or a obtain a waiver of service pursuant to Rule 4(d).
4. If Plaintiffs fail to comply with the requirements of this Order in the time prescribed, this action may be dismissed for failure of service pursuant to Rule 12(b)(5).
DONE AND ORDERED in Chambers in Orlando, Florida, on April 10, 2014. Copies:
Counsel of Record
Notes
[1] Consideration of Mr. Carither’s declaration is appropriate under Rule 4(l)(3)— “The court may permit proof of service to be amended.”
[2] Because the return of service is silent on this matter, it is not “regular on its
face,” and Plaintiffs are not entitled to a presumption of validity.
See Haueter-Herranz v.
Romero
, 975 So. 2d 511, 518 (Fla. 4th DCA 2008) (noting that a return of service is
entitled to a “presumption of validity” only if it is “regular on its face”);
The Pep Boys-
Manny, Moe & Jack, Inc.
,