The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ELI LILLY AND COMPANY,
Plaintiff,
v. Case No. 8:24-cv-1488-TPB-SPF
PHTB LLC and PRECISION WEIGHT
LOSS CENTER, LLC,
Defendants.
/
ORDER
Before the Court is Plaintiff’s Unopposed Motion for Order Authorizing Alternate
Service of Process (Doc. 52). Upon consideration, the Court finds that Plaintiff’s Motion
should be granted in part and denied in part.
BACKGROUND
On October 4, 2024, Plaintiff filed its Amended Complaint for Trademark
Infringement, False Advertising, False Designation of Origin, and Deceptive and Unfair
Trade Practices, which added Precision Weight Loss Center, LLC (“PWLC”) as a defendant
(Doc. 32). Since adding PWLC as a defendant, Plaintiff has made several attempts to serve
PWLC to no avail. As a result, Plaintiff now seeks authorization to serve PWLC by e-mail,
as it appears to be evading service (Doc. 52). Alternatively, Plaintiff requests to serve PWLC
by serving the Secretary of State of Georgia (Id.).
ANALYSIS
Federal Rule of Civil Procedure 4(h)(1)(A) permits service on “a domestic or foreign
corporation, or a partnership or other unincorporated association . . . in the manner prescribed
by Rule 4(e)(1) for serving an individual,” which includes “following state law for serving a
summons in an action brought in courts of general jurisdiction in the state where the district
court is located or where service is made.” See Fed. R. Civ. P. 4(h)(1)(A), (e)(1). Because
PWLC is a Georgia limited liability company (Doc. 52-1), Plaintiff may serve PWLC
pursuant to Georgia law or Florida law. Here, Plaintiff has expressed a desire to serve PWLC
pursuant to Georgia law.
Georgia law allows service on a limited liability company to be accomplished by
delivering a copy of the summons and complaint to “the president or other officer” of the
company, “a managing agent thereof, or a registered agent thereof, provided that when for
any reason service cannot be had in such manner, the Secretary of State shall be an agent of
the [company] upon whom any process, notice, or demand may be served.” O.C.G.A. § 9-
11-4(e)(1)(A); see also Williams v. Abebe Sandy Ventures, LLC, 884 S.E.2d 576, 578 (Ga. App.
2023) (noting that O.C.G.A. § 9-11-4(e)(1)(A) applies to limited liability companies as well as
corporations). Alternatively, Georgia law provides for service of process on a limited liability
company’s registered agent, and if “the agent cannot with reasonable diligence be served, the
limited liability company may be served by registered or certified mail or statutory overnight
delivery, return receipt requested, addressed to the limited liability company at its principal
office.” O.C.G.A. § 14-11-1108(a). Service is perfected under this section at the earliest of:
“(1) The date the limited liability company receives the mail; (2) The date shown on the return
receipt, if signed on behalf of the limited liability company; or (3) Five days after its deposit
in the mail, as evidenced by the post mark, if mailed postage prepaid and correctly addressed.”
Id. The methods of service outlined in the Civil Practice Act, O.C.G.A. § 9-11-1 et seq. and
the Georgia Business Corporation Code, O.C.G.A. § 14-2-1 et seq. are discrete methods of
service and a plaintiff may serve a limited liability company by following either scheme.
Williams, 884 S.E.2d at 579–80; see also O.C.G.A. § 9-11-4(j) (“The methods of service
provided in this Code section are cumulative and may be utilized with, after, or independently
of other methods of service. Whenever a statute provides for another method of service,
service may be made under the circumstances and in the manner prescribed by the statute or
under any other methods prescribed in this Code section.”); O.C.G.A. § 14-11-1108(a) (“This
subsection does not prescribe the only means, or necessarily the required means, of serving a
limited liability company.”).
Plaintiff first attempted to serve PWLC at 3755 Carmia Drive SW, Suite 970, Atlanta,
Ga 30331. This is the address listed on the Georgia Secretary of State’s website as PWLC’s
principal office and is also the address of its registered agent, Kelvin Brown (Doc. 52-1).
Plaintiff was unable to complete service as both the building and suite were vacant. Plaintiff
then attempted to serve PWLC at 3915 Cascade Road, Suite 110, Atlanta, Georgia 30331,
and was unable to complete service as the unit was vacant. Plaintiff then attempted to serve
PWLC at 6425 Power Ferry Road NW, Suite 198, Atlanta, GA 30331, the address listed on
PWLC’s website. Plaintiff’s process server attempted service at this location on three separate
days, and each day the doors were locked and the lights were turned off. Plaintiff also
attempted service at 2751 Buford Highway NE, Suite 290, Atlanta, GA 30331, another
address listed on PWLC’s website, and was unable to complete service as the business was
locked, the lights were turned off, and the doorbell did not function. Finally, Plaintiff
attempted to locate the residence of Kelvin Brown, PWLC’s registered agent, to complete
service of process. The resident of the home stated that she was the ex-wife of Kelvin Brown,
and that he did not live there. As a result, Plaintiff was unable to complete service of process
(Id.).
Given the unsuccessful attempts to serve PWLC, Plaintiff seeks leave to serve PWLC
by electronic mail. In support of this request, Plaintiff cites to O.C.G.A. § 9-11-4(j), which
provides for alternative service. The statute states:
(j) Alternative service. The methods of service provided in this Code section are
cumulative and may be utilized with, after, or independently of other methods
of service. Whenever a statute provides for another method of service, service
may be made under the circumstances and in the manner prescribed by the
statute or under any other methods prescribed in this Code section. The
provisions for service by publication provided in this Code section shall apply
in any action or proceeding in which service by publication may be authorized
by law; and, where by law special provision is made for service by publication,
the procedure for such service by publication provided in this Code section may
be utilized in lieu thereof. In all cases or special proceedings where the
requirements or procedure for service, or both, are not prescribed by law and
in any situation where the provisions therefor are not clear or certain, the
court may prescribe service according to the exigencies of each case,
consistent with the Constitution.
Id. (emphasis added). Plaintiff further argues that, as a constitutional matter, alternative
service of process by e-mail is appropriate where that method is calculated to give notice to a
defendant.1 To that end, Plaintiff argues that email is appropriate here because PWLC
operates primarily over the Internet, has a designated e-mail address for contact, and has
already received e-mail communications from Plaintiff.
The Court finds that service of process by e-mail is not appropriate in these
circumstances. While O.C.G.A. § 9-11-4(j) does permit a court to “prescribe service
according to the exigencies of each case, consistent with the Constitution,” a court may only
1 Each of the cases cited by Plaintiff in support of this proposition deals with Federal Rule of
Civil Procedure 4(f)(3), which permits service of process on individuals in foreign countries
“by other means not prohibited by international agreement, as the court orders.” Fed. R. Civ.
P. 4(f)(3). As a result, the Court finds them inapplicable here.
do so in situations where the provisions for service of process are “not clear or certain.”
O.C.G.A. § 9-11-4(j). That is not the case here. Indeed, the Civil Practice Act specifically
provides that when, for any reason service cannot be completed on a company’s registered
agent, “the Secretary of State shall be an agent of the [company] upon whom any process,
notice, or demand may be served.” O.C.G.A. § 9-11-4(e)(1)(A). Alternatively, the Georgia
Business Corporation Code provides that when a company’s registered agent cannot be served
with reasonable diligence, a plaintiff may complete service by registered or certified mail or
statutory overnight delivery. O.C.G.A. § 14-11-1108(a). Thus, there is no uncertainty as to
how Plaintiff may serve PWLC.
Finally, Plaintiff alternatively requests leave to serve PWLC by serving the Secretary
of State of Georgia. As discussed above, O.C.G.A. § 9-11-4(e)(1)(A) permits service on the
Secretary of State when, for any reason, service cannot be completed on a limited liability
company’s registered agent. Here, Plaintiff has attempted to serve PWLC’s registered agent
at the address listed on the Georgia Secretary of State’s website and at two addresses listed on
PWLC’s website. Plaintiff’s process server made these attempts on different days, and each
time the buildings appeared vacant. Plaintiff then attempted to serve PWLC at an address
Plaintiff believed to be the residence of the registered agent, though this turned out not to be
the case. Given these unsuccessful attempts, Plaintiff has shown that service cannot be
completed on PWLC’s registered agent, and as a result, Plaintiff is entitled to serve PWLC
by serving the Secretary of State of Georgia.
Accordingly, it is ORDERED:
1. Plaintiff’s Unopposed Motion for Order Authorizing Alternate Service of Process
(Doc. 52) is GRANTED IN PART and DENIED IN PART.
2. Plaintiff may serve Defendant Precision Weight Loss Center, LLC by serving the
Georgia Secretary of State pursuant to O.C.G.A. § 9-11-4(e)(1)(A).
ORDERED in Tampa, Florida, on December 19, 2024.
at
SEAN P. FL N
UNITED STATES MAGISTRATE JUDGE