Johansen v. Presley, 11-cv-3036-JTF-dkv
| Decision Date | 06 March 2014 |
| Docket Number | No. 11-cv-3036-JTF-dkv,11-cv-3036-JTF-dkv |
| Court | U.S. District Court — Western District of Tennessee |
| Parties | LISA JOHANSEN, Plaintiff, v. PRISCILLA PRESLEY, NAVARONE GARIBALDI, ELVIS PRESLEY ENTERPRISES, INC., and CKX, INC., Defendants. |
Before the Court are the Magistrate Judge's Reports and Recommendations filed on June 24, 2013 and October 4, 2013 regarding the Ore Tenus Motion to Dismiss Priscilla Presley and Defendant's Motion to Dismiss Navarone Garibaldi. (DE #75 and DE #112). On July 3, 2013 and on October 18, 2013, Plaintiff filed Objections to the reports and recommendations, respectively. (DE #85 and DE #113/DE #114).
The Court has reviewed de novo the Magistrate Judge's Reports and Recommendations, the legal analyses, Plaintiff's objections in addition to the entire record. For the reasons stated below, theCourt overrules Plaintiff's objections and finds the Magistrate Judge's Reports and Recommendations should be Adopted, the Defendants' Motions to Dismiss pursuant to Fed. R. Civ. 4 (m) and Fed. R. Civ. P. 41(b) should be Granted and the case Dismissed with prejudice.
On November 21, 2011, Plaintiff, a Swedish resident currently living in Florida, filed a complaint against Defendants, Priscilla Presley, Navarone Garibaldi (Presley's son), Graceland/Elvis Presley Enterprises, Inc. (EPE), Core Media Group f/k/a CKX, Inc. (owner and operators of Graceland), and unknown parties a/k/a DOES 1-100. Plaintiff contends that after twenty years of investigations she discovered that she is the rightful Lisa Marie Presley and daughter of Elvis Presley.1
Plaintiff asserts that despite the Defendants' knowledge of her claims, counsel for the Defendants sent a threatening and intimidating letter to her and her daughter dated August 16, 2011, in order to discourage Plaintiff from contacting authorities to report the alleged identity theft and fraud charges. Plaintiff further claims the letter contained false, defamatory and libelous statements regarding Plaintiff that caused her to suffer harm andemotional distress leading to this action. Adopting the Magistrate Judge's proposed findings of fact, the complaint alleges four causes of action: 1) violation of 18 U.S.C. § 1512; 2) libel per se; 3) libel and 4) intentional infliction of emotional distress.
On June 5, 2012, the Court entered an Order to Show Cause why the claims should not be dismissed for failure to effect service pursuant to Fed. R. Civ. 4(m) and for failure to prosecute pursuant to Fed. R. Civ. 41. Plaintiff filed Certificate/Attestations of Service and several motions for Default Judgments against the Defendants. (DE #10, DE #27-DE #30). A response in opposition to motion for default was filed by the individual Defendants on June 22, 2012. (DE #31). On September 19, 2012, the Court subsequently granted Plaintiff an additional sixty (60) days in which to properly serve the Defendants. (DE #33). On February 21, 2013, Plaintiff filed a Motion to Amend its Factfinding and Judgments. (DE #46). The Corporate Defendants Core Media Group f/k/a CKX, Inc. and Elvis Presley Enterprises ("EPE") filed a Motion to Dismiss or for Summary Judgment on December 5, 2012.2 (DE #38).
On June 4, 2013, the matter was referred to the Magistrate Judge for administration, determination, or for report and recommendationof all preliminary and pretrial matters pursuant to 28 U.S.C. § 636 (b) and Fed. Rule Civ. P. 1. 3 (DE #60). On June 20, 2013, the Magistrate Judge set a Rule 26(b) Scheduling Conference as well as a hearing on all pending motions. During the hearing, Defendant Presley made an oral motion to dismiss for failure to timely effect service of process pursuant to Fed. R. Civ. P. 4(m). On June 21, 2013, the Magistrate Judge entered an Order Denying Plaintiff's Motion to Amend Factfinding and Judgments pursuant to Fed. R. Civ. P. 52(A)(6). (DE #70). On June 24, 2013, the Magistrate Judge issued her Report and Recommendation regarding Defendant's Ore Tenus Motion to Dismiss Priscilla Presley , DE #75, to which Plaintiff filed her objections on July 3, 2013. On June 27, 2013, the Magistrate Judge entered her Report and Recommendation to dismiss Defendants CKX and EPE that was adopted by this Court on October 2, 2013. (DE #111).
Defendant Garibaldi similarly filed a Motion to Dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) on July 10, 2013. (DE #99). The Magistrate Judge issued her Report and Recommendation regarding this motion on October 4, 2013, DE #112, to which Plaintiff filed objections on October 18, 2013. (DE #114 and DE #115).
The Court ADOPTS the Magistrate's Reports and Recommendations to Dismiss Defendants Priscilla Presley and Navarone Garibaldi for the reasons set out below. Also, the Court DENIES Plaintiff's Motion for Sanctions, DENIES Plaintiff's Appeal of the Magistrate's Denialof Motion to Amend Factfinding, DENIES Plaintiff's Motion for Recusal, and DENIES Plaintiff's Amended Motion to Appeal the Denial of Default against Priscilla Presley and Denies Leave to file A Notice of Appeal. (DE #70, DE #82, DE #116, and DE #119).
After referring a dispositive motion to a Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), the district judge must review de novo a magistrate judge's proposed findings of fact and recommendations in dispositive motions. The rules provide:
Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by the rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
See 28 U.S.C. §636 (b)(1)(B) and (C); Fed. Rule Civ. P. 72(b); Baker v. Peterson, 67 Fed. App'x. 308, 311 (6th Cir. 2003). In applying the de novo standard, Congress afforded the district judge sound discretion to rely on the Magistrate Judge's proposed findings and determinations. U.S. v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, ___ L.Ed. ___ (1980); Matthews v. Weber, 423 U.S. 261, 275 (1976). The Court need not conduct a de novo hearing, but must make a de novo determination based on the record only to matters involving disputedfacts and findings. Mira, 806 F.2d at 637. However, de novo review is not required when the objections to the report and recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986).
The Magistrate Judge properly determined that Presley's Ore Tenus Motion to Dismiss without prejudice should be granted pursuant to Fed. R. Civ. P. 4(m) for ineffective service of process or, in the alternative, as additional grounds, that Presley should be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b) for Plaintiff's failure to prosecute. Specifically, the Magistrate concluded that Plaintiff's attempt to serve Presley by mail was ineffective under Tennessee law because the registered mail receipt was not returned nor was it refused as required by Fed. R. Civ. P. 4 (e)(2). The Magistrate Judge also found service was ineffective under California law because Plaintiff failed to include an Acknowledgment of Receipt of Summons form to be included in the mailing or, if she had, it was not completed and returned as evidenced by the record. Ca. Civ. Proc. Code §415.30(a). The Magistrate Judge noted that although the Court had given Plaintiff additional time in which to properly serve the individual parties, DE #33,Plaintiff did not do so nor did she hire a private process server as she had with the corporate defendants.4 Plaintiff filed objections to the Report and Recommendation on July 3, 2013. (DE #85).
Plaintiff objects to the Magistrate Judge's determination that service upon Presley was defective. She states that she has properly served Presley by amending the proof of service. Also, Plaintiff contends the Hague Convention on service abroad does not require a return receipt when utilizing an Article 10 or Article 19. The Court finds the provisions of the Hague Convention, a multi-national treaty, are inapplicable to the case at issue.
Article 10 provides methods of service of judicial and extrajudicial documents abroad while Article 19 permits service by any method permitted by the internal laws of the country in which service is made. Uppendahl v. American Honda Motor Co., Inc., 291 F.Supp.2d 531, 532 (W.D. Ky. 2003); Wilson v. Honda Motor Company, Ltd. 776 F.Supp. 339 (E.D.Tenn. 1991). Neither provision applies in this case. The individual defendant at issue in the Ore Tenus Motion to Dismiss, Priscilla Presley, is an American citizen who resides in the state of California. Therefore, service of process is not needed abroad.
Plaintiff's second objection to the Magistrate Judge's Report and Recommendation states that the Defendant's appearance through counsel at the pretrial conference constituted an alleged "forfeiture" of Presley's defective service of process. (DE #85). Plaintiff contends:
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