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 Kimberlins 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 Twitchys Request to file a supplemental memorandum (the Request), ECF No. 120; and (3) Plaintiffs 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 Kimberlins 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 andif 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 requiresby 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 Deliveryshow 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 States 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. Secy 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. 1
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 Envtl 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 entitys 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, 53940 (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,
1 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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Plaintiffs 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 Plaintiffs 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 Plaintiffs conduct with respect to the improper summons served on Twitchy. See Request. In my order of February 21, 2014, I found that Plaintiffs 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