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Topps Company, Inc. v. Lapeyrouse

United States District Court, E.D. Louisiana

January 17, 2019

THE TOPPS COMPANY, INC.
v.
PAUL JOSEPH LAPEYROUSE, JR. d/b/a FUNTIME CANDY & TOY and FUNTIME XIAMEN CANDY CO., LTD.

         SECTION M (3)

          ORDER & REASONS

          BARRY W. ASHE UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion to dismiss for insufficient service of process, or alternatively, for lack of personal jurisdiction, filed by defendant Paul Joseph Lapeyrouse, Jr. (“Lapeyrouse”), [1] to which plaintiff The Topps Company, Inc. (“Topps”) responds in opposition, [2]and in further support of which Lapeyrouse replies.[3] Having considered the applicable law and the parties' memoranda, the Court issues this Order & Reasons.

         I. BACKGROUND

         This is a patent infringement case. Topps filed this action against Lapeyrouse and a company with which he was affiliated, Funtime (Xiamen) Candy Co., Ltd. (“Funtime”) (collectively “Defendants”), alleging that they infringed Topps' patent for “Juicy Drop Pop” lollipops by developing and offering for sale a competing lollipop called the “Squeezy Squirt Pop.”[4] Topps learned of the Defendants' alleged connection to the “Squeezy Squirt Pop” through parallel litigation pending in the United States District Court for the Southern District of New York in which Topps brought patent and trade dress infringement claims against Koko's Confectionery & Novelty, a division of A&A Global Industries, Inc. (“Koko's”), for its involvement with the marketing, importation, sale, and distribution of the “Squeezy Squirt Pop” in the United States (“the New York litigation”).[5]

         In November 2017, Topps attempted to serve subpoenas for documents related to the New York litigation on Lapeyrouse and Funtime at an address in Marrero, Louisiana, at which Topps thought Lapeyrouse resided.[6] The process server attempted service seven times between November 9, 2017, and November 20, 2017.[7] At each attempt, the process server noted that there were no vehicles present and nobody answered the door.[8] Also, on November 11, 2017, a neighbor approached the process server and told him that Lapeyrouse “mostly lives on a sailboat and is rarely there because he's traveling around [and] [h]e's currently in Florida and no idea when he'll be back.”[9]

         On January 3, 2018, Topps' counsel emailed a letter and the subpoenas to Lapeyrouse at an email address he used to communicate with Koko's.[10] Also on January 3, 2018, Topps' counsel sent the letter and subpoenas to Lapeyrouse at the Marrero address.[11] “P. Lapeyrouse” signed for the package on January 5, 2018.[12] That same day, a process server unsuccessfully attempted to serve the subpoenas on Lapeyrouse at the Marrerro address.[13] The process server reported that a neighbor told him that he believed that the camper in which Lapeyrouse was purportedly living was abandoned, and Lapeyrouse's brother lived next door to the camper.[14]Further, Lapeyrouse's brother told the process server that Lapeyrouse no longer lived at that address and might be in the Bahamas.[15] The brother did not know when Lapeyrouse would return to the United States.[16]

         In April 2018, Topps hired a private investigator to locate Lapeyrouse.[17] The private investigator discovered several addresses and businesses in Louisiana that have been associated with Lapeyrouse over the years.[18] Of note, the private investigator concluded that Lapeyrouse lived with his girlfriend, Sandra Estis (“Estis”), at 4877 Denice LeBlanc Lane in Barataria, Louisiana, because he was registered to vote at that address, it was the address on file for him with Equifax and TansUnion TLO, he paid utility bills at this address, and social media posts indicate that he and Estis are in a relationship and purchased a yacht together in August 2017.[19]

         On May 9, 2018, Topps filed this action against Lapeyrouse and Funtime. On May 18, 2018, a private investigator called Lapeyrouse on his cell phone and asked if he would be available to receive a package at 4877 Denice LeBlanc Lane.[20] Lapeyrouse identified himself and confirmed that he received mail at that address, but stated that he was on “holiday” and a package could be left with a “family member” who would be at the house.[21] As a result of that conversation, Topps arranged for Kennith Landry (“Landry”), a process server, to deliver the summons and complaint to 4877 Denice LeBlanc Lane.[22]

         In his declaration, Landry states that he went to the 4877 Denice LeBlanc Lane on May 18, 2018, and Angela Conley (“Conley”) answered the door.[23] Conley invited Landry inside and discussed the matter with him while he completed the service paperwork.[24] Landry told Conley that the summons and complaint were for Lapeyrouse and the companies with which he was affiliated.[25] Conley informed Landry that Lapeyrouse and Estis, Conley's daughter, were in the Bahamas, but Estis was on her way back.[26] Landry observed a large sailboat docked at the residence, and Conley said that Lapeyrouse and Estis keep the boat there when they are not sailing it.[27] Landry left the summons and complaint with Conely to give to Lapeyrouse.[28]

         II. PENDING MOTION

         On June 29, 2018, Lapeyrouse filed the instant motion to dismiss for insufficient service of process, or alternatively, for lack of personal jurisdiction, arguing that Topps did not properly serve him with process pursuant to Rule 4(e) of the Federal Rules of Civil Procedure, and that he is not subject to either specific or general personal jurisdiction in Louisiana.[29] Lapeyrouse argues that he does not reside at 4877 Denice LeBlanc Lane, and that even if he did, Conley was not an appropriate person to receive service for him there because she is a resident of Oklahoma.[30] Topps argues that this Court should accept its attempts to serve Lapeyrouse as sufficient, and deem him to have been properly served because he clearly has notice of this action considering that he hired attorneys to defend him and filed the instant motion to dismiss.[31]

         III. LAW & ANALYSIS

         Rule 12(b)(5) of the Federal Rules of Civil Procedure permits a defendant to move to dismiss a complaint for improper service of process. “A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or the lack of delivery of the summons and complaint.” 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed.).

         Rule 4(e)(1) of the Federal Rules of Civil Procedure, which governs service of process on individuals, provides:

(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been filed-may be served in a judicial district of the United States by:
(1) 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;[32] or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and ...

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