PROCTOR v. MCCOY

Background

Demetrius Proctor alleged that Travis McCoy, Bruno Mars, Phillip Lawrence, Ari Levin, Thou Art the Hunger, Music Famamanem L.P., and Epileptic Caesar Music Inc. used and continued to use unspecified copyrighted material without permission in the song “Billionaire.” Proctor sought an injunction, statutory damages, punitive damages for unjust enrichment under Maryland law, costs, and attorney’s fees. He proceeded without a lawyer.

The case was initially filed in the United States District Court for the District of Columbia. It was later transferred to the Southern District of New York. The court had directed Proctor to complete forms so the U.S. Marshals Service could serve the defendants. Proctor listed 60-62 East 11th Street, 7th Floor, New York, New York, as the address for service. The Marshals attempted service there, and McCoy appeared, but the other defendants did not.

The court described repeated delays and periods of inactivity. Proctor did not attend scheduled hearings, did not timely file an amended complaint, did not respond to a pre-motion letter, and did not oppose McCoy’s motion to dismiss despite receiving additional time and orders to explain his lack of response.

McCoy’s Motion

McCoy moved under Federal Rule of Civil Procedure 12(b)(5) for dismissal based on insufficient service of process. He also raised lack of personal jurisdiction, failure to state a claim, and failure to prosecute. Because a court must have authority over the defendant before exercising jurisdiction, the court considered the service issue first.

Under the federal rules and New York law, an individual may be served personally, at a home with a suitable resident, or through an authorized agent, among other permitted methods. Once a defendant challenges service, the plaintiff must show that service was adequate.

Court’s Analysis

The attempted service on McCoy occurred at Crush Music through Scott Nagelberg, whom McCoy described as a member of his artist management team. McCoy stated that the address had never been his home or place of business, that he was not present when service was attempted, and that Nagelberg was not authorized to accept service. Nagelberg likewise stated that he lacked authorization.

The court also noted that Proctor had not opposed the motion or supplied evidence showing that the address was McCoy’s home or business, that Proctor had a valid basis for associating the address with McCoy, or that service otherwise complied with federal or New York law. The court concluded that adequate service had not been completed and therefore lacked personal jurisdiction over McCoy. It did not consider McCoy’s other arguments and found it unnecessary to decide the failure-to-prosecute issue as to McCoy.

Disposition

The court GRANTED McCoy’s motion to dismiss under Rule 12(b)(5). The case was DISMISSED as to McCoy, and the clerk was directed to terminate McCoy from the case and mail Proctor a copy of the opinion and order.

As to the remaining defendants, the court ordered Proctor to show cause in writing by October 21, 2020, why the claims should not be dismissed for failure to serve and failure to prosecute. The opinion did not state a final disposition of the claims against those defendants.