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ECF 122

ECF 122

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RICO Madness
RICO Madness

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UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

CHAMBERS OF 6500 CHERRYWOOD LANE
PAUL W. GRIMM GREENBELT, MARYLAND 20770
UNITED STATES DISTRICT JUDGE (301) 344-0670
(301) 344-3910 FAX
April 28, 2014
RE: Kimberlin v. National Bloggers Club et al.
PWG-13-3059

LETTER ORDER
Dear Parties:
This Letter Order addresses (1) Plaintiff Brett Kimberlin’s Response to my Order to
Show Cause why certain Defendants should not be dismissed for failure to prosecute (“Pl.’s
Response”), ECF No. 103; (2) Defendants Michelle Malkin and Twitchy’s Request to file a
supplemental memorandum (the “Request”), ECF No. 120; and (3) Plaintiff’s Motion for Entry
of Default against Defendant Breitbart.com (“Pl.’s Mot. for Default”), ECF No. 121.
In response to my Order to Show Cause, Kimberlin has shown that he has diligently
worked to serve the remaining Defendants. See Pl.’s Response. With respect to Defendants
National Bloggers Club, Ali Akbar, and Kimberlinunmasked, Kimberlin acknowledges that he
has not yet effected service. Kimberlin has attempted to serve Defendants National Bloggers
Club and Ali Akbar by certified mail, but he says that Akbar (whom Plaintiff alleges is the
president of National Bloggers Club) has refused service. Id. ¶ 4. Plaintiff says that he will be
filing a request to serve those parties by alternate means. Id. ¶ 5. With respect to Defendant
Kimberlinunmasked, Kimberlin represents that he only recently learned her identity and will be
serving her shortly (if he has not done so already). Id. ¶ 6. I find that Kimberlin’s efforts to
serve these Defendants constitute good cause for extending the time for service. See Fed. R. Civ.
P. 4(m).
Kimberlin also claims that he has served Defendants Lee Stranahan and Breitbart.com.
Pl.’s Response. Stranahan has consented to electronic service and Kimberlin has effected service
on him. Pl.’s Response ¶ 2. Thus, it neither is necessary to extend the time to serve Stranahan
nor is it appropriate to dismiss him at this time.
Defendant Breitbart.com, however, presents more complicated issues. Kimberlin claims
that he has effected service on Breitbart.com, id. ¶ 3, and has filed a motion for the entry of a
default as against Breitbart.com, see Pl.’s Mot. for Default. But it is not clear that Kimberlin
properly has effected service on Breitbart.com.
Fed. R. Civ. P. 4(h)(1) allows for service on corporate defendants to be effected:
A) In the manner prescribed by Rule 4(e)(1) for serving an individual; or
B) by delivering a copy of the summons and of 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
Case 8:l3-cv-03059-PWG Document l22 Filed 04/28/l4 Page l of 3


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is one authorized by statute and the statute so requires—by also
mailing a copy of each to the defendant . . . .
Under Fed. R. Civ. P. 4(e)(1), service also may be effected 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 or where service is made.” By attempting to serve Breitbart.com by
certified mail, Kimberlin appears to be relying on Maryland Rule 2-121(a), which allows service
“by mailing to the person to be served a copy of the summons, complaint, and all other papers
filed with it by certified mail requesting: ‘Restricted Delivery—show to whom, date, address of
delivery.’” When serving a corporation or other business entity, service must be made on “its
resident agent, president, secretary, or treasurer,” or if no such official exists or can be served,
“the manager, any director, vice president, assistant secretary, assistant treasurer, or other person
expressly or impliedly authorized to receive service of process.” Md. Rule 2-124(d).
Kimberlin did not direct the summons and complaint to a registered agent, but generally
to “Breitbart.com” at 149 South Barrington #735, Los Angeles, California 90049. Return
Receipt, Pl.’s Mot. for Default Ex, ECF No. 121. A search through the California Secretary of
State’s website yields two results for “Breitbart”: a California corporation called Breitbart
Holdings, Inc. (“Breitbart Holdings”), and a Delaware limited liability company called Breitbart
News Network, LLC (“Breitbart News”). Business Entity Detail, Cal. Sec’y of State Debra
Bowen, http://kepler.sos.ca.gov. Both of these entities are located at 8383 Wiltshire Blvd., Suite
1000, Beverly Hills, California 90211. However, Breitbart Holdings lists its Agent for Service
of Process as Larry Solov, 149 S. Barrington Ave., # 747, Los Angeles, California, 90211.
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The Return Receipt address is similar, but not identical to the address listed for Breitbart
Holdings, and is signed by a Manoj DeMal. Return Receipt. Kimberlin has not made any
representation as to who DeMal is, much less that he is Breitbart Holdings’ “resident agent,
president, secretary, or treasurer.” See Pl.’s Mot. for Default; Md. Rule 2-124(d). Nor has
Plaintiff alleged that DeMal is authorized to receive mail for Solov or any other officer
authorized to receive service. See Academy of IRM v. LVI Env’t’l Servs, Inc., 687 Md. 669, 446–
47 (Md. 1997) (holding that service may be effected where a summons and complaint, properly
addressed, are received by the assistant or other authorized agent of a corporate entity’s resident
agent). And even if DeMal is a high-level employee of Breitbart Holdings, the fact that Plaintiff
did not first attempt to serve a resident agent, president, secretary, or treasurer means that service
on DeMal is not effective. See Trademark Remodeling, Inc. v. Rhines, 853 F. Supp. 2d 532,
539–40 (D. Md. 2012) (a good faith effort to serve a resident agent, president, secretary, or
treasurer is required before an attempt to serve another corporate officer can be valid). Further,
because the summons and complaint were addressed to a trade name that does not appear to
match the name of an actual entity, and were sent to a different suite with a different zip code
from those listed for Solov, it is not even clear that DeMal is associated with Breitbart Holdings
at all. This does not suffice to effect service under Maryland law.
Although Fed. R. Civ. P. 4(e)(1) also authorizes service under “state law for serving a
summons in an action brought in courts of general jurisdiction . . . where service is made,”

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Breitbart News lists its agent as C T Corporation System, and does not list an address.
Accordingly, it seems unlikely, though not impossible, that this was the entity Kimberlin
intended to serve.
Case 8:l3-cv-03059-PWG Document l22 Filed 04/28/l4 Page 2 of 3


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Plaintiff’s attempt at service does not satisfy requirements under California law either. First, like
Maryland, California has specific requirements as to who may accept service on behalf of a
corporation, Cal. Civ. Proc. Code § 416.10, and Plaintiff has made no showing that DeMal holds
any of the positions enumerated by that provision. Second, California has additional formal
requirements for service by mail, see Cal. Civ. Proc. Code § 415.30, or service on a corporation,
see Cal. Civ. Proc. Code § 412.30, that were not met here.
Accordingly, it is by no means clear that Breitbart has “failed to plead or otherwise
defend.” Fed. R. Civ. P. 55(a). To the contrary, it does not appear that Breitbart.com has been
served properly at all under Maryland or California law. However, the fact that Kimberlin
believed that he had effected proper service is sufficient to explain why he did not make
additional attempts to serve Breitbart.com, Fed. R. Civ. P. 4(m), and warrants an extension of
time to serve it properly under either Fed. R. Civ. P. 4(h) or Maryland or California law.
Accordingly, the time to serve Defendants Breitbart.com, National Bloggers Club, Ali
Akbar, and Kimberlinunmasked IS EXTENDED by the later of an additional sixty (60) days
from this Letter Order or, should Plaintiff’s motion to amend his complaint, ECF No. 100, be
granted, the appropriate period for service of the amended complaint.
Finally, Defendants Malkin and Twitchy have filed a Request to submit new information
bearing on Plaintiff’s conduct with respect to the improper summons served on Twitchy. See
Request. In my order of February 21, 2014, I found that Plaintiff’s conduct, though clearly
improper, did not prejudice Twitchy, and I ordered Plaintiff to show cause why sanctions should
not issue. Letter Order, ECF No. 88. In response, Plaintiff has stated that his conduct was the
result of ignorance and not deliberate bad faith or desire to deceive. See Pl.’s Verified Resp. to
Feb. 21, 2014 Order to Show Cause re Twitchy Summons, ECF No. 102. If “Malkin and
Twitchy believe that the transcript and their Supplemental Memorandum will assist this Court in
resolving the issue pending before it,” Request, then I would be remiss in denying them the
opportunity to bring such information to my attention. However, because I do not wish to allow
this case to devolve into extended disputes on collateral matters, any supplemental submissions
shall be brief. Malkin and Twitchy MAY FILE a memorandum on the issue they describe not to
exceed three pages, and appending no more than five exhibits.
Though informal, this is an Order of the Court and should be docketed as such.
Sincerely,

/S/
Paul W. Grimm
United States District Judge
dsy
Case 8:l3-cv-03059-PWG Document l22 Filed 04/28/l4 Page 3 of 3

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