Jorge v. Adler

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

RAFAEL JORGE, )

)

Plaintiff, )

)

)

v. ) Civil No. 3:22-cv-30075-KAR

)

)

MARIE ADLER, )

)

Defendant. )

MEMORANDUM AND ORDER ON PENDING MOTIONS

(Dkt. Nos. 7, 10, 15, 22, 26-27, 29-30, 35, 41-42, 44, 46-53, 55)

ROBERTSON, U.S.M.J.

Rafael Jorge (“Plaintiff”), proceeding pro se, has sued Marie Adler (“Defendant”)

pursuant to the Copyright Act, 17 U.S.C. § 101 et seq., for alleged copyright infringement (Dkt.

No. 1). Defendant, also proceeding pro se, has filed a motion to dismiss Plaintiff’s complaint on

numerous grounds, including that she has not been properly served and that she is not subject to

the personal jurisdiction of this court (Dkt. No. 7). Plaintiff opposes dismissal of his complaint

and has filed nineteen motions seeking “a ruling or order” in his favor (Dkt. Nos. 10, 15, 26-27,

29-30, 35, 41-42, 44, 46-53, 55). Defendant has also filed a motion to “extend any proceeding

until late March 2023,” asserting that she will be out of the country for business reasons and has

unspecified health concerns (Dkt. No. 22).

While Plaintiff has not met his burden of establishing proper service, dismissal is

inappropriate at this time. Instead, the court treats Defendant’s motion to dismiss as a motion to

quash service of process, grants it, and gives Plaintiff 90 days from the date of this order to effect

service. If Plaintiff fails to meet this deadline, this matter will be dismissed without prejudice.

Furthermore, because Defendant’s motion to dismiss raises a serious question about personal

jurisdiction, the court orders Plaintiff to show cause in writing as to why this matter should not

be dismissed for lack of personal jurisdiction within 90 days from the date of this order. The

court denies Plaintiff’s serial motions for “a ruling or order” in his favor as they are essentially

motions for summary judgment, which fail to comply with Federal Rule of Civil Procedure 56 or

Local Rule 56.1 regarding such motions. Finally, the court denies Defendant’s motion to extend

the proceedings until late March 2023, as the motion is not sufficiently supported but does so

without prejudice to Defendant’s filing a renewed and properly supported motion.

I. BACKGROUND1

Plaintiff is the author and copyright claimant of the screenplay and all other

cinematographic material of the work entitled En Medio del Dolor (Dkt. No. 1 at 4; Dkt. No. 1-1

at 13, 37-43). On September 6, 2016, Plaintiff, a Massachusetts resident, made a contract with

Adler & Associates Entertainment, Inc. (“Adler & Associates”), granting the company the

exclusive worldwide right to distribute the motion picture based on the screenplay (Dkt. No. 1 at

4, Dkt. No. 7-1).2 Plaintiff alleges that Defendant, a California resident and the Chief Executive

Officer, Chief Operating Officer, and President of Adler & Associates, personally infringed his

1 For purposes of ruling on this motion, the court accepts all facts alleged in Plaintiff’s complaint

as true and draws all reasonable inferences in Plaintiff’s favor. See In re Fin. Oversight & Mgmt.

Bd. for P.R., 919 F.3d 121, 127 (1st Cir. 2019) (citing Ocasio-Hernández v. Fortuño-Burset, 640

F.3d 1, 7 (1st Cir. 2011)).

2 The court may consider documents sufficiently referred to in the complaint in ruling on a

motion to dismiss without converting the motion into one for summary judgment. Freeman v.

Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013). Here, Plaintiff refers to the distribution

agreement he entered into with Adler & Associates, and Defendant has attached a copy to her

motion to dismiss. Plaintiff does not contest the authenticity of the document and, therefore, it is

appropriate for this court to consider it.

copyright in En Medio del Dolor by distributing the movie under the name Heart of Pain for two

years without compensating him (Dkt. No. 1 at 2, 4; Dkt. No. 1-1 at 22).

II. SERVICE OF PROCESS

“Before a federal court may exercise personal jurisdiction over a defendant, proper

service of process must be effected.” Brown v. Dash, Civil Action No. 20-10980-FDS, 2020 WL

6806433, at *4 (D. Mass. Nov. 18, 2020) (citing Omni Capital Int’l Ltd. v. Rudolf Wolff & Co.,

Ltd., 484 U.S. 97, 104 (1987)). “Federal Rule of Civil Procedure 12(b)(5) allows a party to

challenge the way in which the opposing party executed service of process, or the mode of

delivery of the summons and complaint.” Colon-Ortiz v. Toyota Motor Mfg., Inc., Civil No. 20-

1677 (BJM), 2022 WL 17067647, at *1 (D.P.R. Nov. 17, 2022). Once a defendant challenges

the sufficiency of process, the plaintiff has the burden of proving proper service. Morrissey v.

Massachusetts, Civil Action No. 18-11386-MBB, 2022 WL 1463051, at *4 (D. Mass. May 9,

2022). “The fact that a defendant has actual notice of the lawsuit is insufficient to establish

personal jurisdiction.” Carissimo v. Marriott Int’l, Inc., No. 19-cv-12405-ADB, 2020 WL

3416590, at *3 (D. Mass. June 22, 2020) (citing Echevarria-Gonzalez v. Gonzalez-Chapel, 849

F.2d 24, 28 (1st Cir. 1988)). See also Forward Fin. LLC v. Moss Supermarket LLC, 303 F.

Supp. 3d 209, 211 (D. Mass. 2018) (“Actual notice and simply naming the person in the caption

of the complaint is insufficient to subject a defendant to the jurisdiction of the district court.”

(quoting Echevarria–Gonzalez, 849 F.2d at 28)).

“Under the federal rules, an individual within a judicial district of the United States can

be served in accordance with state law where the court is located or where service is made, by

personal delivery, by delivery at the individual’s usual place of abode, or by delivery to an agent

authorized to receive service.” XMOD Indus. v. Kennedy, Civil Action No. 1:22-cv-11464-IT,

2022 WL 17486611, at *2 (D. Mass. Dec. 7, 2022) (citing Fed. R. Civ. P. 4(e)). According to

Plaintiff, he first attempted to effectuate service by trackable mail to an unidentified address in

Los Angeles, California; he has submitted proof that the item was picked up at a postal facility in

Los Angeles and was signed for by “S J” (Dkt. Nos. 5, 11). Several days later, Plaintiff made a

second attempt at service, this time by certified mail to 8721 Santa Monica Blvd. #312, W.

Hollywood, CA 90069, which is the address listed for Defendant in the complaint (Dkt. Nos. 1,

6, 11). The certified mail receipt bears an illegible signature or initials starting with an “S” and

states that it was received by “Mailbox Place” (Dkt. N. 6).

Pursuant to Fed. R. Civ. P. 4(e), Plaintiff’s attempts at service by mail were effective only

if either Massachusetts or California law allow for such service. Massachusetts allows personal

service outside the Commonwealth “by any form of mail addressed to the person to be served

and requiring a signed receipt.” Mass. R. Civ. P. 4(e); Mass. Gen. Laws ch. 223A, § 6

(a)(3). “When service is made by mail, proof of service shall include a receipt signed by the

addressee or such other evidence of personal delivery to the addressee as may be satisfactory to

the court.” Mass. R. Civ. P. 4(f). See also Mass. Gen. Laws ch. 223A, § 6 (b). California allows

service by first-class mail or airmail, postage prepaid, but only if two copies of a prescribed

notice and acknowledgment are included, as well as a return envelope, postage prepaid,

addressed to the sender. Cal. Civ. Proc. Code § 415.30.

Here, Plaintiff has not submitted any proof that he included two copies of the prescribed

notice and a return envelope, as would be required under California law. Therefore, Plaintiff has

not shown that he satisfied the requirements of service by mail in California. However, he has

submitted proof that a signed receipt was required upon delivery of the packet he sent by

certified mail to the address in W. Hollywood, which may satisfy Massachusetts law. While it is

not clear from the record what the W. Hollywood address is, the Massachusetts rule “governing

service by certified mail does not specifically require that the summons and complaint be mailed

to the individual’s place of abode.” Brown v. Gascard Club, Inc., Civ. A. No. 86-1311-z, 1986

WL 13076, at * 1 (D. Mass. Nov. 4, 1986). The difficulty for Plaintiff is that the receipt does not

appear to bear Defendant’s signature. Instead, it bears an illegible signature or initials starting

with an “S” and indicates that it was received by “Mailbox Place.” Because the receipt does not

appear to be signed by Defendant, Plaintiff must submit “other evidence of personal delivery to

[Defendant] as may be satisfactory to the court,” Mass. R. Civ. P. 4(f), and this he has failed to

do. The receipt Plaintiff filed “was signed by a person whose relationship to defendant or

authority is unknown. Absent some evidence of delivery to defendant, this service is

insufficient.” Id. Therefore, Plaintiff has not overcome Defendant’s challenge to the sufficiency

of service of process.

That said, “dismissal under Fed. R. Civ. P. 12(b)(5) is inappropriate where there is ‘a

“reasonable conceivable means” through which service may be obtained and jurisdiction

acquired over the defendant.’” Colon-Ortiz, 2022 WL 17067647, at *2 (quoting Ramirez de

Arellano v. Colloïdes Naturels Intern., 236 F.R.D. 83, 85 n.4 (D.P.R. 2006)). See also Doyle v.

YMCA of N.H., 560 F. Supp. 3d 499, 503 (D.N.H. 2021). “If service was ineffective, the court

may treat the motion to dismiss as a motion to quash service of process.” Colon-Ortiz, 2022 WL

17067647, at *2 (citing Ramirez de Arellano, 236 F.R.D. at 85 n.4). Because there are

reasonable conceivable means through which Plaintiff could serve Defendant, this court treats

the motion to dismiss as a motion to quash service of process, grants it, and orders that Plaintiff

serve Defendant within 90 days from the date of this order.3 Plaintiff may attempt service via

certified mail to the P.O. box on record for Defendant with this court, personal delivery, delivery

at Defendant’s usual place of abode, or delivery to an agent authorized to accept service.

Further, “[u]nder Massachusetts law, if service is unsuccessful ‘after diligent search … the court

may on application of the plaintiff issue an order of notice in the manner and form prescribed by

law.’” XMOD Indus., 2022 WL 17486611, at *2 (citing Mass. R. Civ. P. 4(d)(1),(2)). Thus, to

the extent that Plaintiff is able to show this court that he has conducted a diligent search and has

been unable to locate Defendant, service by alternate means may be appropriate.4

III. PERSONAL JURISDICTION

In cases such as this invoking the court’s federal question jurisdiction, 28 U.S.C. § 1331,

the Due Process Clause of the Fifth Amendment of the United States Constitution requires only

that a defendant maintain “adequate contacts” with the United States as a whole rather than with

the forum state. Waters v. Day & Zimmerman NPS, Inc., 464 F. Supp. 3d 455, 457 (D. Mass.

2020) (citing United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001)).

Nevertheless, a plaintiff must “‘ground its service of process in a federal statute or civil rule.’”

Id. (quoting Swiss Am. Bank, 274 F.3d at 618). The federal statute in question here, the

Copyright Act, does not provide for nationwide service of process. Am. Century Home Fabrics,

3 Fed. R. Civ. P. 4(m) requires that “[i]f a defendant is not served within 90 days after the

complaint is filed, the court – on motion or on its own after notice to the plaintiff – must dismiss

the action without prejudice against that defendant or order that service be made within a

specified time.”

4 For example, “[c]ourts have authorized alternate service of process by email where the parties

had regularly used email to communicate in the past.” Id. (citing Swenson v. Mobilityless, LLC,

Civil Action No. 19-30168-KAR, 2020 WL 2404835, at * 2 (D. Mass. May 12, 2020); Jackson

Lab’y v. Nanjing Univ., No. 1:17-cv-00363-GZS, 2018 WL 615667, at * 4 (D. Me. Jan. 29,

2018); Sec. & Exch. Comm’n v. Marvel Partners, C.A. No. 08-12008-MLW, 2008 WL

11511616, at * 2 (D. Mass. Dec. 22, 2008)).

Inc. v. Ashley Furniture Indus., Inc., Civil Action No. 06-10932-JLT, 2006 WL 8458434, at *1

n.2 (D. Mass. Oct. 31, 2006). Thus, this court has personal jurisdiction over Plaintiff only if she

is subject to the jurisdiction of a court of general jurisdiction in the Commonwealth of

Massachusetts. Fed. R. Civ. P. 4(k)(1)(A). See also Am. Century Home Fabrics, 2006 WL

8458434, at *1, n.2 (“Because the Copyright Act does not provide for such nationwide service,

this court only has jurisdiction when a Massachusetts court would.”). Accordingly,

notwithstanding that this is a federal question case, “this Court must conduct the same personal

jurisdiction inquiry as in a diversity case, focusing on the defendant’s contacts with

Massachusetts rather than with the United States as a whole.” Motus, LLC v. CarData

Consultants Inc., 520 F. Supp. 3d 87, 91 (D. Mass. 2021) (citing Johnson Creative Arts, Inc. v.

Wool Masters, Inc., 743 F.2d 947, 950 (1st Cir. 1984)).

When a district court rules on a motion to dismiss for lack of personal jurisdiction

without holding an evidentiary hearing, the “prima facie” standard governs the determination.

Swiss Am. Bank, 274 F.3d at 618 (citing United Elec. Radio & Mach. Workers of Am. v. 163

Pleasant St. Corp., 987 F.2d 39, 43 (1st Cir.1993)). “‘Under this standard, it is plaintiff’s burden

to demonstrate the existence of every fact required to satisfy both the forum’s long-arm statute

and the Due Process Clause of the Constitution.’” Id. at 618-19 (quoting Pleasant St., 987 F.2d

at 44). Because “‘[t]he prima facie showing must be based upon evidence of specific facts set

forth in the record,’” the plaintiff must “‘go beyond the pleadings and make affirmative proof.’”

Id. at 619 (quoting Pleasant St., 987 F.2d at 44). Nevertheless, when the court makes its

determination of whether the prima facie standard has been satisfied, it does not act as a

factfinder; instead, it “‘accepts properly supported proffers of evidence by a plaintiff as true and

makes its ruling as a matter of law.’” Id. (quoting Pleasant St., 987 F.2d at 44).

“[T]o make a prima facie showing of personal jurisdiction in diversity cases, the plaintiff

must demonstrate that the exercise of jurisdiction 1) is permitted by the Massachusetts long-arm

statute, M.G.L. c. 223A, § 3, and 2) coheres with the Due Process Clause of the Fourteenth

Amendment of the United States Constitution by showing that each defendant has ‘minimum

contacts’ with Massachusetts.” Waters, 464 F. Supp. 3d at 458 (citing Daynard v. Ness, Motley,

Loadholt, Richardson, & Poole, P.A., 290 F.3d 42, 52 (1st Cir. 2002)). The relevant portion of

the Massachusetts long-arm statute provides:

A court may exercise personal jurisdiction over a person who acts

directly or by an agent, as to a cause of action in law or equity

arising from the person’s

(a) transacting any business in this commonwealth;

(b) contracting to supply services of things in this

commonwealth;

(c) causing tortious injury by an act or omission in this

commonwealth;

(d) causing tortious injury in this commonwealth by an act or

omission outside this commonwealth if he regularly does or

solicits business, or engages in any other persistent course

of conduct, or derives substantial revenue from goods used

or consumed or services rendered, in this commonwealth …

Mass. Gen. Laws ch. 223A, § 3. Regarding due process:

[a] plaintiff attempting to establish specific personal jurisdiction

over an out-of-state defendant must demonstrate that:

(1) [his] claim directly arises out of or relates to the defendant’s

forum-state activities; (2) the defendant’s contacts with the

forum state represent a purposeful availment of the privilege of

conducting activities in that state, thus invoking the benefits and

protections of that state’s laws and rendering the defendant’s

involuntary presence in that state’s courts foreseeable; and (3)

the exercise of jurisdiction is ultimately reasonable.

Vapotherm, Inc. v. Santiago, 38 F.4th 252, 258 (1st Cir. 2022) (citing Scottsdale Cap. Advisors

Corp. v. The Deal, LLC, 887 F.3d 17, 20 (1st Cir. 2018)). Defendant has challenged personal

jurisdiction, and there is no basis in the record to conclude that any of the specific requirements

of the Massachusetts long-arm statute apply or that Defendant has “minimum contacts” with

Massachusetts sufficient to justify the exercise of personal jurisdiction over her here.

Accordingly, Plaintiff is ordered to show cause in writing within 90 days of the date of this order

why this court should not dismiss this case for lack of personal jurisdiction. Failure to do so will

likely result in dismissal of this case without prejudice to its refiling in a court having jurisdiction

over Defendant.

IV. MOTIONS FOR “RULING OR ORDER” IN PLAINTIFF”S FAVOR

As of this date, Plaintiff has filed a total of nineteen motions seeking “a ruling or order”

in his favor. He also asks the court to enter a judgment in his favor for $7,000,000.00.

In essence, Plaintiff is seeking to have the court enter summary judgment in his favor on

his copyright infringement claim against Defendant. Entitlement to summary judgment turns on

a party’s ability to demonstrate that there is no genuine dispute as to any material fact and that

the party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Rule 56 requires a

party asserting that a fact cannot be or is genuinely disputed to support the assertion by “citing to

particular facts in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations …, admissions, interrogatory answers or

other materials,” or “showing that the materials cited do not establish the absence or presence of

a genuine dispute, or that an adverse party cannot produce admissible evidence to support the

fact.” Fed. R. Civ. P. 56(c)(1). Moreover, Local Rule 56.1 requires that motions for summary

judgment “include a concise statement of the material facts of record as to which the moving

party contends there is no genuine dispute to be tried, with page references to affidavits,

depositions and other documentation.” L.R. 56.1. Because Plaintiff’s many motions fail to

include the required statement and do not demonstrate the absence of a genuine dispute as to any

material fact or that Plaintiff is entitled to judgment as a matter of law, they are denied. Fed. R.

Civ. P. 56; L.R. 56.1. Moreover, Plaintiff is advised that this court cannot and will not grant any

motions seeking judgment in his favor at least until such time as this court determines that it has

personal jurisdiction over Defendant, and any such motions filed before that time will be

summarily denied. In the event the court determines it does have personal jurisdiction over

Defendant, it will only consider such motions if they comply with the requirements of the federal

and local rule. All non-conforming motions will be denied.

V. MOTION TO “EXTEND THE PROCEEDINGS”

Finally, Defendant has filed a motion to “extend any proceeding until late March 2023,”

asserting that she will be out of the country for business reasons and has unspecified health

concerns. The court will deny this motion as it is insufficiently supported. See Local Rule

7.1(b)(1) (“Affidavits and other documents setting forth or evidencing facts on which the motion

is based shall be filed with the motion.”). However, this denial is without prejudice to Defendant

filing a subsequent motion seeking the same relief and properly supporting it by including, for

example, a personal affidavit establishing that she is out of the country and explaining why she is

unable to participate in these proceedings until late March 2023, or documentation from a

medical professional establishing that she is unable to participate in these proceedings until late

March 2023.

V. CONCLUSION

For the above-stated reasons, Defendant’s motion to dismiss (Dkt. No. 7) is treated as a

motion to quash service of process and it is GRANTED. Plaintiff has 90 days from the date of

this order to effect service. If Plaintiff fails to meet this deadline or to request leave to make

service by alternative means, this matter will be dismissed without prejudice. Furthermore,

Plaintiff is ordered to show cause in writing within 90 days from the date of this order as to why

this matter should not be dismissed for lack of personal jurisdiction. Plaintiff’s many motions

for “a ruling or order” in his favor (Dkt. Nos. 10, 15, 26-27, 29-30, 35, 41-42, 44, 46-53, 55) are

DENIED. Finally, Defendant’s motion to “extend any proceeding until late March 2023” (Dkt.

No. 22) is denied without prejudice.

It is so ordered.

Dated: January 31, 2023 /s/ Katherine A. Robertson_____

KATHERINE A. ROBERTSON

United States Magistrate Judge