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Washington v. Mayweather

United States District Court, E.D. Louisiana

November 1, 2019

TOREN WASHINGTON
v.
FLOYD MAYWEATHER ET AL.

         SECTION: “H” (1)

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE.

         Before the Court are Plaintiff's Motion for Entry of Default Judgment (Doc. 11), Defendants' Motion to Set Aside Default and to Dismiss (Doc. 12), and Plaintiff's Motion for Ruling on Pending Pleading (Doc. 17). For the following reasons, Plaintiff's Motions are DENIED, and Defendants' Motion is GRANTED.

         BACKGROUND

         Plaintiff Toren Washington filed this pro se action against Defendants Floyd Mayweather and Mayweather Promotions, LLC alleging breach of contract and misappropriation of intellectual property.[1] Service of process was attempted on February 14, 2019, but Defendants did not file responsive pleadings. A preliminary default was entered on March 29, 2019 on the motion of Plaintiff. Thereafter, on April 5, 2019, Plaintiff moved for the entry of default judgment. Just five days later, Defendants appeared and filed a Motion to Set Aside Default and a Motion to Dismiss. Defendants argue that they were not properly served and that the default should therefore be set aside and the case dismissed for insufficient service of process. Plaintiff opposes this Motion.

          LAW AND ANALYSIS

A. Insufficient Service

         Before addressing each motion, the Court must address the threshold issue of the sufficiency of service of process on Defendants. “When service of process is challenged, the party on whose behalf it is made must bear the burden of establishing its validity.”[2]

         There are two returns of service filed into the record of this case. The first shows that a process server, Dwayne Alexander, delivered a summons intended for Mayweather Promotions via FedEx to B. Golfarm at 4020 Schiff Drive, Las Vegas, Nevada, 89102.[3] The second shows that Alexander delivered a summons intended for Mayweather Promotions via FedEx to S. Steven at 4616 Sahara Avenue, Las Vegas, Nevada, 89102.[4]

         Defendants correctly point out that there is no return of service in the record showing proper service on Defendant Floyd Mayweather. Rule 4(e) provides that service may be effected on an individual defendant by (1) following the procedural methods of service provided by the state in which the district court is located, (2) “delivering a copy of the summons and of the complaint to the individual personally, ” (3) “leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there, ” or (4) “delivering a copy of each to an agent authorized by appointment or by law to receive service of process.”[5] The record does not indicate that any of these methods were used to effect service on Defendant Floyd Mayweather individually. Plaintiff does not dispute this. Accordingly, Defendant Floyd Mayweather has not been properly served.

         Defendants also argue that Plaintiff's attempts to serve Mayweather Promotions were ineffective because he failed to serve its registered agent for process. Under Rule 4(h)(1), service may be effected on an LLC “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.” Alternatively, plaintiffs may serve process in accordance with the law of the state where the district court is located or where service is made.[6] Here, service under the laws of either Louisiana or Nevada would be permissible. Louisiana law provides that service of process on an LLC should first be attempted by personal service on any one of its agents for service of process.[7] Nevada law provides that service on an LLC would be proper on the registered agent of the entity; any member of a member-managed LLC; any manager of a manager-managed LLC; any managing or general agent of any entity; or any other agent authorized by appointment or by law to receive service of process.[8]

         According to the Nevada Secretary of State, Mayweather Promotions LLC's registered agent for service is Jeffrey Morse & Associates, LTD, located at 3753 Howard Hughes Pkwy, #200-416, Las Vegas, Nevada, 89169. Mayweather Promotions is listed as a member-managed LLC, and the only managing member indicated is Floyd Mayweather. Neither B. Golfarm nor S. Steven is listed as a registered agent or managing member of Mayweather Promotions. Further, Plaintiff has not shown that either of these individuals is an agent otherwise authorized to accept service on behalf of Mayweather Promotions. Accordingly, both attempts at service were insufficient, and Mayweather Promotions has not been properly served.

         B. Motion to Set Aside Default

         Defendants ask this Court to set aside entry of default in light of insufficient service. Rule 55(c) permits the trial court to set aside an entry of default for “good cause.”[9] To determine whether “good cause” has been shown, a district court should consider (1) whether the default was willful; (2) whether granting the motion would prejudice the non-moving party; and (3) whether a meritorious defense is presented.[10] These factors, however, are not “talismanic, ” and the Court may consider others, such as whether the public interest was implicated, whether there was significant financial loss to the defendant, and whether the defendant acted expeditiously to correct the ...


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