United States District Court, D. Arizona
A. Teilborg, Senior United States District Judge.
Court previously ordered: “IT IS
ORDERED confirming that all Defendants not yet
served must by served by March 25, 2019, and Plaintiff should
not anticipate any extensions of this deadline.” (Doc. 78
(footnote in original)). In that same order, at
Plaintiff's request, the Court ordered that Defendant
John Cosenza would be served by the U.S. Marshals.
indicated above, Plaintiff had until March 25, 2019 to
complete service. To date, five Defendants have not appeared
in this case: (1) Slacker Incorporated; (2) Brilliant Digital
Entertainment Incorporated; (3) John Cosenza; (4) Heartland
Music.com; and (5) Import CDs Incorporated. Consistent with
this Court's prior order, Plaintiff returned a service
packet for Defendant John Cosenza on March 14,
2019, which was forwarded to the Marshals. The Marshals have
not yet indicated whether service was accomplished.
the other four Defendants, the time for service has expired
and no valid proof of service is on file. Specifically, in a
similar case, the Court held:
Service may be accomplished on a corporation in a state
outside of Arizona by sending a copy of the summons and the
complaint by certified mail, return receipt, to a partner, an
officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of
process for the corporation. See Fed. R. Civ. P.
4(h)(1)(a), 4(e)(1); Ariz. R. Civ. P. 4.1(h) and (i) and
Ariz. R. Civ. P. 4.2(c). Here, Plaintiff did not serve an
officer or managing or general agent of FATSS. See Direct
Mail Specialists, Inc., 840 F.2d at 688. Further,
Plaintiff has not demonstrated that Mike Cordell was an
appointed or otherwise authorized agent of FATSS to accept
service. See Id. Consequently, Plaintiff's
attempted service on the FATSS was insufficient. See
Zenith Radio Corp., 395 U.S. at 110; Direct Mail
Specialists, Inc., 840 F.2d at 688.
Diamond v. First Nat'l Bank of Arizona, No.
CV-14-00975-PHX-SPL, 2014 WL 12647761, at *1 (D. Ariz. Dec.
case, Doc. 27, which purports to be the proof of service for
Slacker Inc., Brilliant Digital Entertainment Inc., John
Cosenza, Heartland Music.com and Import CDs Inc., indicates a
that a request to waive service was sent, not a
summons. Thus, Doc. 27 fails to prove service as to
all Defendants. Moreover, it indicates that the mail to
Brilliant Digital Entertainment Inc. was returned because the
address was incorrect. As to the other three corporations, it
fails to identify the address or the partner, officer,
manager, general agent, or appointed agent to whom it was
sent. Accordingly, this purported proof of service is
deficient for all the foregoing reasons.
indicated above, the time to complete service under Federal
Rule of Civil Procedure 4(m), as extended (Doc. 22), has
expired. Thus, Plaintiff will be required to show cause why
each of the corporations should not be dismissed.
Defendant John Cosenza, because the service packets were
given to the Marshals prior to March 25, 2019, and because
the Court does not yet know the status of service, the Court
will wait to determine whether dismissal is appropriate until
the Marshals advise whether service was accomplished.
on the foregoing, IT IS ORDERED that by
April 4, 2019, Plaintiff shall show cause in writing why
Defendants: Slacker Inc.; Brilliant Digital Entertainment
Inc., Heartland Music.com; and Import CDs, Inc. should not be
dismissed, without prejudice, for failure to timely serve.
IS FURTHER ORDERED that Plaintiffs motion for
reconsideration of this Court's order regarding Marshal
service on Defendant John Cosenza (Doc. 90) is denied.
 On the Court's cursory review of
the record, there is no evidence of service on file for: John
Cosenza, Apple Inc., Slacker Inc., Brilliant Digital
Entertainment Inc., Heartland ...