# GLD, LLC v. 6 Ice LLC

> District Court, S.D. Florida · October 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10119704

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** October 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10119704

## How later opinions describe it (automated extraction)

- stating that “[b]ecause Rule 4(h)(1) requires in person service on defendant-corporations, [the plaintiff]’s attempt to serve the defendants by certified mail alone was not sufficient under Rule 4(h)(1).”
- noting that “[t]he term ‘delivering’ appears to refer to personal service.”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-cv-21706-CIV-COOKE/O=SULLIVAN

GLD, LLC,

Plaintiff,

v.

6 ICE, LLC,

Defendant.

/

ORDER

THIS MATTER came before the Court on the Defendant 6 Ice, LLC’s Motion to
Quash Defective Service of Process with Incorporated Memorandum of Law (DE# 16,
7/19/21).
BACKGROUND

On May 4, 2021, GLD, LLC (hereinafter “plaintiff”) filed a six-count complaint
against 6 ICE, LLC (hereinafter “defendant”) alleging causes of action under federal and
Florida law for trade dress infringement, unfair competition and false designation of
origin and trade dress dilution. See Complaint and Demand for Jury Trial (hereinafter
“Complaint”). On the same day, the Clerk’s Office issued a summons directed to the
defendant. See Summons in a Civil Case (DE# 4, 5/4/21) (hereinafter “Summons”).
On May 27, 2021, the plaintiff filed a proof of service signed by Teresa F. Scharf,
a paralegal. See Proof of Service (DE# 6, 5/27/21). Ms. Scharf attested, under penalty
of perjury, that on May 18, 2021, “[t]he Summons, Complaint, and Notice of Assignment
regarding new judge [were] served via secure e-mail upon [the] statutory agent,”
LegalZoom. Id.
On June 11, 2021, the plaintiff moved for the entry of a clerk’s default “for failure
to plead or otherwise defend as provided by the Federal Rules of Civil Procedure . . . .”
See Application for Clerk’s Entry of Default Against Defendant 6 ICE, LLC (DE# 9,

6/11/21) (hereinafter “Application for Clerk’s Default”). The Application for Clerk’s
Default was accompanied by the Affidavit of Rachael L. Rodman, an attorney who has
been granted pro hac vice admission to represent the plaintiff in the instant case. See
Affidavit of Rachael L. Rodman (DE# 9-1, 6/11/21) (hereinafter “Rodman Aff.”); Order
(DE# 8, 5/27/21).
On June 14, 2021, a deputy clerk entered a notice of non-entry of default (DE#
10, 6/14/21). The docket entry stated that a “summons (affidavit) returned executed or
waiver of service executed . . . ha[d] not been entered on [the] docket” and “[t]he court
record [did] not indicate leave of Court for Alternative Service due to COVID-19.” Id.
(some capitalization omitted).

On July 19, 2021, the defendant filed the instant motion seeking to quash service
of process. See Defendant 6 Ice, LLC’s Motion to Quash Defective Service of Process
with Incorporated Memorandum of Law (DE# 16, 7/19/21) (hereinafter “Motion”).1 The
plaintiff filed its response in opposition on August 2, 2021. See Plaintiff GLD, LLC’s
Memorandum in Opposition to Defendant 6 Ice, LLC’s Motion to Quash Defective

1 The instant Motion was initially filed as a response to the plaintiff’s motion for default
judgment. See Defendant 6 Ice, LLC’s Combined Response in Opposition to Plaintiff
GLD, LLC’s Motion for Default Judgment and Defendant 6 Ice, LLC’s Motion to Quash
Defective Service of Process with Incorporated Memorandum of Law (DE# 13, 7/12/21).
On July 16, 2021, the Court struck this response on the ground that “[a] response in
opposition to a motion is not the proper avenue to file what should be [a] separate
motion.” See Endorsed Order (DE# 14, 7/16/21).
Service of Process (DE# 22, 8/2/21) (“Response”). The Response was accompanied by
a declaration from attorney Rachael Rodman. See Declaration of Rachael L. Rodman in
Support of Plaintiff GLD, LLC’s Memorandum in Opposition to Defendant 6 Ice LLC’s
Motion to Quash Defective Service of Process (DE# 22-1, 8/2/21) (hereinafter “Rodman

Decl.”). The defendant filed a reply on August 9, 2021. See Defendant’s Reply
Memorandum in Support of Motion to Quash Defective Service of Process (DE# 23,
8/9/21) (“Reply”).
THE PLAINTIFF’S EFFORTS TO SERVE THE DEFENDANT2

1. May 18, 2021 Service of Process

Initially, the plaintiff hired a process server to serve the defendant at its address
in Los Angeles, California. Rodman Decl. at ¶ 4. The process server informed the
plaintiff that the defendant “did not maintain a physical office” at that location and that
the “address was only for receiving mail and deliveries.” Id.
The plaintiff contacted LegalZoom, the defendant’s statutory agent for service of
process. Rodman Decl. at ¶ 4. “LegalZoom advised that it could not accept service of
process in person during May 2021 due to the COVID-19 pandemic and indicated that
service of process should be made by email or mail.” Id. at ¶ 5.

2 The information summarized in this section was obtained from the Proof of Service
(DE# 6, 5/27/21) which was signed, under penalty of perjury, by paralegal Teresa F.
Scharf, the Affidavit of Rachael L. Rodman (DE# 9-1, 6/11/21) and the Declaration of
Rachael L. Rodman (DE# 22-1, 8/2/21). The defendant disputes the legal sufficiency of
the plaintiff’s efforts to serve the defendant, but has not filed any declarations,
documents or other evidence countering the factual allegations contained in these three
documents. Therefore, the undersigned considers the facts summarized in this section
as undisputed. The undersigned does not rely on any legal conclusions contained in
these documents.
On May 18, 2021, the plaintiff’s counsel’s office either emailed or caused to be
emailed3 to LegalZoom a copy of the summons, Complaint and notice of assignment
regarding new judge. Rodman Decl. at ¶ 6; Proof of Service at 1. The plaintiff “obtained
confirmation from both LegalZoom and the share file notification that each of the served

files was successfully downloaded by LegalZoom on the same date.” Id. On or about
June 10, 2021, LegalZoom “confirm[ed] that it had provided the served materials to
Defendant 6 Ice LLC on May 19, 2021 . . . .” Rodman Decl. at ¶ 84
On June 15, 2021, Ms. Rodman “called LegalZoom . . . to determine whether its
ability to accept service of process in person had changed given the improving
conditions of the COVID-19 pandemic.” Rodman Decl. at ¶ 10. A “LegalZoom
representative . . . indicated that LegalZoom was still unable to accept service in person
and that service must be made by email or mail.” Id.

3 The plaintiff does not specify who sent the email to LegalZoom. The Rodman Affidavit
and Rodman Declaration state a legal conclusion: “Our office made service on
LegalZoom via email on May 18, 2021 . . . .” Rodman Aff. at ¶ 6; Rodman Decl. at ¶ 6.
The Proof of Service is written in the passive voice: “The Summons, Complaint, and
Notice of Assignment regarding new judge was [sic] served via secure email upon
statutory agent.” Proof of Service at 1.

4 The defendant states that “[it] became aware of this action on or about June 25, 2021,
through a third party (other than its registered agent LegalZoom, Inc.)” but has not filed
an affidavit, declaration or other sworn document attesting to this fact. Motion at ¶ 17. In
any event, for purposes of the instant Motion, it does not matter when the defendant
became aware of this lawsuit. “A defendant’s actual notice is not sufficient to cure
defectively executed service.” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).
2. June 29, 2021 Service of Process

On June 29, 2021, an attorney at plaintiff’s counsel’s office5 emailed LegalZoom
a copy of the summons and the Complaint. See Notice (DE# 18-1, 7/27/21). On the
same day, “LegalZoom signed and returned an acknowledgement of receipt of service
pursuant to Section 415.30 of the California Code of Civil Procedure.” Rodman Decl. at
¶ 12. The acknowledgment of receipt of summons was signed by Joyce Yi as manager
of LegalZoom.com, Inc. See Notice (DE# 18-1, 7/27/21). It “acknowledge[d] receipt on
5/18/2021. . . of a copy of the summons and of the complaint at 101 N. Brand Blvd. Fl.
11, Glendale, CA 91203 via email to: ramanagement@legalzoom.com.” Id.
(emphasis added).
In addition to the email, on June 29, 2021, the plaintiff also attempted service on
LegalZoom by United States priority mail. Rodman Decl. at ¶ 12.6
On July 27, 2021, the plaintiff filed an amended complaint. See Amended
Complaint and Demand for Jury Trial (DE# 17, 7/27/21).

STANDARD OF REVIEW
Rule 4 of the Federal Rules of Civil Procedure governs service of process. Rule
4(h)(1) states, in pertinent part, that a plaintiff may serve an entity7 within the United

5 The plaintiff filed a Notice (DE# 18-1, 727/21) which identifies the sender as Katherine
M. Poldneff. A review of the plaintiff’s counsel’s website shows that Ms. Poldneff is an
attorney with that firm.

6 Ms. Rodman’s declaration does not list the documents sent to LegalZoom on June 29,
2021 by United States priority mail.

7 The defendant in the instant case is a limited liability company. Rule 4(h)(1) applies to
limited liability companies. See Tetra Tech Ec, Inc. v. White Holly Expeditions LLC, No.
3:10-CV-465-J-32MCR, 2010 WL 3259696, at *6 (M.D. Fla. Aug. 16, 2010) (stating that
“Rule 4(h), Federal Rules of Civil Procedure, control[s] service of process on
States “in the manner prescribed by Rule 4(e)(1) for serving an individual”8 or “by
delivering a copy of the summons and of the complaint to an officer, managing or
general agent, or any other agent authorized by appointment or by law to receive
service of process . . . .” Fed. R. Civ. P. 4(h)(1). The term “delivering” has been

interpreted to mean personal service. See Hunt v. Nationstar Mortg., LLC, 684 F. App’x
938, 941 (11th Cir. 2017) (stating that “[b]ecause Rule 4(h)(1) requires in person service
on defendant-corporations, [the plaintiff]’s attempt to serve the defendants by certified
mail alone was not sufficient under Rule 4(h)(1).”); Dyer v. Wal-Mart Stores, Inc., 318 F.
App’x 843, 844 (11th Cir. 2009) (noting that “[t]he term ‘delivering’ appears to refer to
personal service.”).
“Where a defendant challenges service of process, the plaintiff bears the burden
of establishing its validity.” Fitzpatrick v. Bank of New York Mellon, 580 F. App’x 690,
694 (11th Cir. 2014) (citing Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design,
Inc., 635 F.2d 434, 435 (5th Cir. 1981)).9 “Once the sufficiency of service is brought into

question,” the plaintiff has the burden of showing that service of process was proper.

corporations, partnerships, and unincorporated associations and applies to service on a
limited liability company.”).

8 Federal Rule of Civil Procedure 4(e)(1) provides that an individual may be served by
“following state law for serving a summons . . . in the state where the district court is
located or where service is made.” Fed. R. Civ. P. 4(e)(1). Here, the plaintiff asserts that
service of process was effectuated under California law. See Response at 5 (citing Cal.
Code of Civ. Proc. § 415.30). The plaintiff has not argued that service was proper under
Florida law. Therefore, the undersigned will only address service of process under
California law.

9 The Eleventh Circuit in Bonner v. City of Prichard, 661 F. 2d 1206, 1207 (11th Cir.
1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered
prior to October 1, 1981.
Cadot v. Miami-Dade Fire Rescue Logistics Div., No. 13-23767-CIV, 2014 WL 1274133,
at *1 (S.D. Fla. Mar. 27, 2014) (Cooke, J.) (citations omitted). “If the plaintiff can
establish that service was proper, the burden shifts to the defendant to bring strong and
convincing evidence of insufficient process.” Id. “A defendant’s actual notice [of the

lawsuit] is not sufficient to cure defectively executed service.” Albra v. Advan, Inc., 490
F.3d 826, 829 (11th Cir. 2007).
ANALYSIS

The parties dispute whether the plaintiff effectuated valid service of process on
the defendant. As summarized above, the plaintiff attempted service of process on the
defendant multiple times: service by email to LegalZoom on May 18, 2021, service by
email to LegalZoom on June 29, 2021 and service by United States priority mail on
June 29, 2021.
1. Service by Mail under Section 415.30

At the outset, the Court finds that the plaintiff’s June 29, 2021 service by United
States priority mail was insufficient under California law. Under California law “[s]ervice
of a summons pursuant to [section 415.30] is deemed complete on the date a written
acknowledgment of receipt of summons is executed, if such acknowledgment thereafter
is returned to the sender.” Cal. Civ. Proc. Code § 415.30(c). “Effective service on a
defendant within California requires a signed receipt of the summons and
complaint.” Bolkiah v. Superior Ct., 74 Cal. App. 4th 984, 1000 (1999) (emphasis
added).
In the instant case, the plaintiff has not filed a written acknowledgement of receipt
for the documents sent on June 29, 2021 via United States priority mail. The
acknowledgement of receipt filed with this Court is for the summons and complaint
emailed to LegalZoom. See Notice (DE# 18-1, 7/27/21). The plaintiff has not filed an
acknowledgement of receipt for the documents mailed on June 29, 2021. Therefore, the
plaintiff has not effectuated service by mail pursuant to section 415.30.

Additionally, Ms. Rodman’s declaration does not list which documents were
included in the June 29, 2021 mailing. Thus, the Court cannot conclude that the
necessary documents were mailed on that day. See Cal. Civ. Proc. Code § 415.30(a)
(requiring “[a] copy of the summons and of the complaint . . . be mailed (by first-class
mail or airmail, postage prepaid) to the person to be served, together with two copies of
the notice and acknowledgment provided for in subdivision”).
In McDow v. Shelter Fin. Servs., LLC, the court determined that the plaintiff had
failed to show adequate proof of service on the defendant where the record reflected
similar deficiencies. 1:21-CV-00163-AWI-EPG, 2021 WL 4078032, at *2 (E.D. Cal. Sept.
8, 2021) (noting that “there [was] no indication that the required notice and

acknowledgement, see § 415.30(b), were mailed to Defendant” and “Plaintiff attache[d]
no returned written acknowledgment to show that service ha[d] been completed.”); see
also Gines Dominguez v. Osorio, No. CV 16-689 PSG (GJSX), 2018 WL 7458522, at *4
(C.D. Cal. Oct. 18, 2018) (finding service on defendant defective where “the proof of
service . . . fail[ed] to state that the summons and complaint were mailed ‘together with
two copies of the notice and acknowledgement’ and ‘a return envelope, postage
prepaid, addressed to the sender’ in compliance with California Civil Procedure Code §
415.30” and “there [was] no receipt of acknowledgement of service on file with the Court
to corroborate that Defendant . . . was properly served”). For the same reasons, the
Court finds that the plaintiff did not effectuate service by mail pursuant to Cal. Civ. Proc.
Code § 415.30.10
2. Section 415.30 Does Not Expressly Provide for Service by Email
As already noted, the plaintiff attempted to effectuate service of process on the

defendant by email on May 18, 2021 and on June 29, 2021. See supra. The defendant
states that “Plaintiff did not receive leave of court to serve the Summons and Complaint
via email.” Motion at ¶ 8. The defendant further states that “[n]either the Federal Rules
of Civil Procedure nor the Florida or California state statutes provide that service of
process may be completed via email – especially without leave of Court.” Id. at 6.
The plaintiff seeks to establish proper service of process under California Civil
Procedure Code § 415.30. Response at 5. Section 415.30 states that:
A summons may be served by mail as provided in this section. A copy of
the summons and of the complaint shall be mailed (by first-class mail or
airmail, postage prepaid) to the person to be served, together with two
copies of the notice and acknowledgment provided for in subdivision (b)
and a return envelope, postage prepaid, addressed to the sender.

Cal. Civ. Proc. Code § 415.30(a) (emphasis added). There is no provision in section
415.30 for service by email. Section 415.30 only addresses service by mail. Therefore,
the Court cannot conclude that the plaintiff complied with section 415.30 when it
attempted service of process by email on May 18, 2021 and June 29, 2021.
3. Modification or Waiver of Service of Process
The plaintiff acknowledges that “service by email is not generally an appropriate

10 Because the plaintiff’s attempted service by mail is otherwise deficient, the Court
does not address whether the plaintiff’s use of Priority Mail satisfied section 415.30(a)’s
requirement that service be made “by first-class mail or airmail, postage prepaid.” Cal.
Civ. Proc. Code § 415.30(a)
method of service,” but states that “in this case, [the defendant’s] statutory agent
LegalZoom directed service of process be made by email.” Response at 4. The plaintiff
maintains that service of process was effectuated on May 18, 2021 or in the alternative,
on June 29, 2021. Id. at 1 (stating that “Defendant 6 Ice was properly served in this

case via service upon its statutory agent in the form requested by the statutory agent on
May 18, 2021. In addition, in a ‘belt and suspenders’ approach, GLD served 6 Ice again
on June 29 via email and mail.”).
The plaintiff relies on Stockfood Am., Inc. v. Am. Dive Bars, LLC in support of its
argument that valid service of process was effectuated via email. No. CV 20-4237 FMO
(KSX), 2020 WL 7343242 (C.D. Cal. Oct. 19, 2020); Response at 4. In Stockfood, the
court addressed an application for default judgment. 2020 WL 7343242 at *1. The court
noted that the defendant had been served with the summons and complaint via email
and, in a footnote, explained that:

Plaintiff served defendant’s registered agent for service of process,
Legalzoom.com, Inc. (“Legalzoom”), by email because Legalzoom
posted a sign outside of its offices stating that it [was] accepting
service by email due to the COVID-19 pandemic. . . . Plaintiff emailed
the summons and complaint to the email address provided on the posted
sign, and a Legalzoom representative responded to the email and
confirmed receipt of the summons and complaint.

Id. at *1, n.1 (emphasis added; citations to the record omitted). The court proceeded to
grant in part and deny in part the application for default judgment. Id. at *5.
The defendant argues that “although the proof of service via email is noted” in
Stockfood, “the [c]ourt did not expressly find that service by email was proper” because
“the Defendant did not enter an appearance and no challenge was asserted to service
of process by email.” Reply at ¶ 10.
The Ninth Circuit has stated that “[w]hen entry of judgment is sought against a
party who has failed to plead or otherwise defend, a district court has an affirmative duty
to look into its jurisdiction over both the subject matter and the parties.” In re Tuli, 172
F.3d 707, 712 (9th Cir. 1999). “Before assessing the merits of a default judgment, a

court must confirm that it has subject matter jurisdiction over the case and personal
jurisdiction over the parties, as well as ensure the adequacy of service on the
defendant.” Boards of Trustees of Sheet Metal Workers Pension Tr. of N. California v.
CER Mech. Corp., No. 20-CV-03462-WHO, 2021 WL 1338556, at *2 (N.D. Cal. Apr. 9,
2021). Thus, the court in Stockfood’s statements regarding the date of service and
manner in which the defendant was served was likely an integral part of its decision to
grant in part the application for default judgment.
Nonetheless, the Court finds that the plaintiff has not met its burden of showing
that service of process was properly effectuated. The plaintiff has not complied with the
waiver of service requirements of Rule 4(d):

Federal Rule of Civil Procedure 4(d) provides for waiver of service, which
essentially amounts to service by mail with specific additional
requirements. Pursuant to Rule 4(d), a party may request waiver of
service of process by notifying the defendant in writing that an action has
been commenced and requesting that defendant waive service of a
summons. The writing must be accompanied by a copy of the complaint,
two copies of a waiver form, and a prepaid means for returning the form.
Fed.R.Civ.P. 4(d)(1)(C). If Plaintiff is unable to obtain waiver after
providing defendant a reasonable time of at least thirty days after the
request was sent, Fed.R.Civ.P. (d)(1)(F), Plaintiff must seek to accomplish
personal service on Defendant, and the court must, absent a showing of
good cause, impose on the defendant the expenses later incurred in
making such service. Fed.R.Civ.P. 4(d)(2).

Thongnoppakun v. Am. Exp. Bank, No. 2:11-CV-08063-ODW, 2012 WL 1044076, at *2
(C.D. Cal. Mar. 26, 2012) (citing Fed. R. Civ. P. 4(d)). “California Code of Civil
Procedure section 415.30 provides for service by ‘notice and acknowledgement,’ which
is substantially similar to waiver of service under Rule 4(d).” Id. Both “require[ ] that the
summons and complaint be mailed together with two copies of the notice and
acknowledgement set forth in the statute.” Id. at *2 (emphasis added). Here, the

plaintiff’s May 18, 2021 and June 29, 2021 emails to LegalZoom did not meet the
requirements of section 415.30 or Rule 4(d).
The Court remains unpersuaded that LegalZoom’s directions to the plaintiff were
sufficient to meet the plaintiff’s burden of showing proper service of process. The
plaintiff has not cited to any case law under California law addressing a registered
agent’s authority to modify or waive service of process. In West v. Bell & Ross Inc., for
instance, the court found that a registered agent’s directions to use a drop box were
insufficient to show service of process had been effectuated:
While the Court appreciates the challenges posed by the pandemic and
the desire to reduce personal contact, it does not appear that service in
this case was proper, as service was neither personal nor were the
Summons and Complaint properly mailed under New York law. To the
extent Plaintiff contends that service was proper because the
registered agent in essence waived personal service by directing
service via the drop box, Plaintiff does not point to anything in the
state or federal rules or relevant case law to support this contention.
Rule 4(d) of the Federal Rules of Civil Procedure outlines a specific
method for waiving service of a summons, which Plaintiff did not follow in
this case. And while Rule 5(b)(2)(F) allows for service of papers and
pleadings after the filing of the original complaint to be delivered “by any
other means that the person consented to in writing,” the Court is not
aware of—nor has Plaintiff pointed to—any equivalent language for
service under Rule 4 or pursuant to the New York service of process rules.

No. 20-CV-3775 (JPC), 2021 WL 1040578, at *2 (S.D.N.Y. Feb. 1, 2021) (emphasis
added).
CONCLUSION
For the foregoing reasons, the Court finds that the plaintiff has failed to show
proper service of process on the defendant. Accordingly, it is
ORDERED AND ADJUDGED that the Defendant 6 Ice, LLC’s Motion to Quash
Defective Service of Process with Incorporated Memorandum of Law (DE# 16, 7/19/21)
is GRANTED. Service of process on the defendant is hereby QUASHED. The plaintiff
shall have thirty (30) days to effectuate service of process on the defendant.
DONE AND ORDERED, in Chambers in Miami, Florida this 1st day of October,
2021.
(Qed.
OWN J. O’SULLIVAN
CHIEF UNITED STATES MAGISTRATE JUDGE

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10119704. Public record. Not legal advice.