Trombetta v. Novocin

Background

Annamarie Trombetta sued Norb Novocin, Marie Novocin, and Estate Auctions, Inc., alleging that they advertised and sold a low-quality painting while falsely claiming that Trombetta had painted it. She alleged copyright violations and harm to her reputation. She later added William Seippel and WorthPoint Corporation, alleging that they contributed to the harm by reposting information about the sale and again attributing the painting to her.

The court addressed motions filed by Seippel and WorthPoint, referred to in the opinion as the WorthPoint Defendants. Magistrate Judge Cave had ordered Trombetta to serve those defendants with the operative complaint by May 21, 2020, and told her to request more time if necessary. Trombetta submitted an affidavit stating that she had served both defendants, but later acknowledged that she had not served properly signed and sealed summonses. She also served WorthPoint with an earlier, inoperative complaint, and Seippel stated that he was not personally served.

The WorthPoint Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(2), 12(b)(4), and 12(b)(5), asserting defects involving personal jurisdiction, the summonses, and service of process. Trombetta later made another service attempt without court permission. That attempt used a summons that misspelled Seippel’s name and a summons for WorthPoint on a form designated for Freedom of Information Act cases. The defendants also moved to quash those summonses. Trombetta then sought more time to serve them, but the court denied that request without prejudice pending resolution of the service dispute.

Legal standard

Rule 12(b)(4) permits dismissal for insufficient process, and Rule 12(b)(5) permits dismissal for insufficient service of process. The plaintiff bears the burden of showing that service was sufficient or that there was good cause for failing to serve the defendant on time. Rule 4 requires summonses to be signed by the clerk and bear the court’s seal, requires a separate summons for each defendant, and generally requires service within 90 days after the complaint is filed. Although courts may extend the deadline even without good cause, plaintiffs must still comply with the service requirements.

Ruling

The court granted Trombetta a 60-day extension to obtain correct summonses and properly serve both WorthPoint Defendants. The deadline for service was January 21, 2021, and the court stated that no further extensions would be granted. It warned that failure to complete proper service by that date would result in dismissal under Rule 12(b)(4) or Rule 12(b)(5).

The court denied the WorthPoint Defendants’ motion to dismiss under Rule 12(b)(2), 12(b)(4), or 12(b)(5). It also denied the motion to quash the summonses; the opinion’s footnote explains that the motion to quash was denied as moot because the court ordered the summonses to be reissued.

The court did not decide the WorthPoint Defendants’ remaining arguments, including their argument that Trombetta failed to state a claim. It concluded that proper service was required before it could exercise personal jurisdiction over them and decide those issues. If Trombetta failed to serve them within the extension, the action would be dismissed as to the WorthPoint Defendants. The Clerk was directed to terminate the motion at Docket Number 108 and reissue the summonses.