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Doc14 Motion For Relief 7 09 12 .pdf



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Case 4:12-cv-00298-DCB Document 14 Filed 07/09/12 Page 1 of 4

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James M. Harrington, pro hac vice
jharrington@harringtonlawpc.com
HARRINGTON LAW, P.C.
P.O. Box 403
Concord, NC 28026-0403
Tel.: (704) 315-5800 / Fax: (704) 625-9259
Attorney for Plaintiffs
Slep-Tone Entertainment Corporation
and Piracy Recovery, LLC

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Slep-Tone Entertainment Corporation
et al.,

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Plaintiffs,
v.
Gary Anthony Granito et al.,

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Case No.: 4:12-CV-298-TUC-DCB
PLAINTIFFS’ MOTION FOR
SERVICE UPON THE ARIZONA
CORPORATION COMMISSION AS
TO DEFENDANT TONY G DJ, LLC

Defendants.

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The Plaintiffs, by their undersigned counsel, hereby move the Court pursuant

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to Fed. R. Civ. P. 4(h)(1)(A), Ariz. R. Civ. P. 4.1(m), and Ariz. Rev. Stat. § 29-606

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for leave to serve Defendant Tony G DJ, LLC by service upon the Arizona

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Corporation Commission as statutory agent. In support of the motion, the Plaintiffs

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state as follows:

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1.

This is an action for trademark infringement and related torts against

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the members, employees, contractors, and affiliates of a single enterprise known as

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“Tony G DJ & Karaoke Service.”

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2.

Defendant Gary Anthony Granito is a member and manager of, and the

registered agent for service of process upon, Defendant Tony G DJ, LLC.
3.

The Plaintiffs have contracted with two different private process

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servers, including Barry Kalish and Tucson Process Service, to attempt service

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upon Tony G DJ, LLC. Mr. Kalish made several attempts to effect service,

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including by arranging a meeting with Granito, but was unable to obtain Granito’s
-1PLAINTIFFS’ MOTION FOR SERVICE UPON ARIZ. CORP. COMM’N. AS TO TONY G DJ, LLC

Case 4:12-cv-00298-DCB Document 14 Filed 07/09/12 Page 2 of 4

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cooperation. Mr. Kalish has reported to counsel that Granito has altered his work

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schedule and habits and could not be found at any of his usual work locations.

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Likewise, Tucson Process Service attempted to effect service, but reports that

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Granito’s residence, which is also the registered office of Tony G DJ, LLC is

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behind a fence with a locked gate. TPS’s process server, John Thorup, has reported

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telephone contact with Granito, who is aware of the suit but notified Mr. Thorup

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that he intends to avoid service of process. A copy of Mr. Thorup’s verified return

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of service is attached hereto as Exhibit A. A copy of the document appointing

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Granito as agent for Tony G DJ, LLC is attached hereto as Exhibit B.

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4.

Arizona Rule 4.1(m) provides for alternative service when personal

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service upon a defendant “proves impracticable,” and empowers the Court with

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broad latitude to determine the method of service.

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Arizona Revised Statutes § 29-606 provides for service in a specified

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manner upon the Arizona Corporation Commission when a limited liability

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company “fails to appoint or maintain a statutory agent at the address shown on the

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records of the commission.”

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6.

Granito’s conduct is plainly calculated to avoid lawful service of

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process and to frustrate the intent of the Arizona Legislature in providing for a clear

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and reasonable method of service of process upon a limited liability company.

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Ariz. Rev. Stat. § 29-606 countenances alternative service via the Corporation

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Commission. Likewise, Arizona Rule 4.1(l) provides for the same form of service

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as to corporations who do not have an officer or agent in Arizona upon whom legal

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service of process can be made.

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7.

While the Plaintiffs believe that no order of this Court is strictly

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necessary to accomplish service in this manner, in deference to the Court’s

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prerogatives and for the avoidance of doubt, the Plaintiffs respectfully request the

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entry of an order expressly permitting service in this manner.

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WHEREFORE, the Plaintiffs respectfully move the Court for an order
-2PLAINTIFFS’ MOTION FOR SERVICE UPON ARIZ. CORP. COMM’N. AS TO TONY G DJ, LLC

Case 4:12-cv-00298-DCB Document 14 Filed 07/09/12 Page 3 of 4

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permitting them to serve Defendant Tony G DJ, LLC by serving the Arizona

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Corporation Commission as statutory agent for same.

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A proposed order is being submitted herewith.

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Respectfully submitted this the 9th day of July, 2012.
HARRINGTON LAW, P.C.

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BY: s/James M. Harrington
James M. Harrington
P.O. Box 403
Concord, NC 28026-0403
(704) 315-5800

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Attorney for the Plaintiffs

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-3PLAINTIFFS’ MOTION FOR SERVICE UPON ARIZ. CORP. COMM’N. AS TO TONY G DJ, LLC

Case 4:12-cv-00298-DCB Document 14 Filed 07/09/12 Page 4 of 4

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CERTIFICATE OF SERVICE

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The undersigned hereby certifies that the foregoing paper is being filed using
the Clerk’s CM/ECF system, which will send a Notice of Electronic Filing to
counsel of record.

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Service upon the following ECF non-participants is this day being made by
First Class Mail, postage prepaid, in envelopes addressed as follows:

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BRANDON TURNER
229 E ROGER RD.
TUCSON, AZ 85705

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JULIE ANN HOLODYNSKI
1441 E ADELAIDE #3
TUCSON, AZ 85719

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STEPHEN M BROWN
4313 N IROQUOIS AVE.
TUCSON, AZ 85705

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JOHN D. HURBON
PO BOX 513
BENSON AZ 85602-0513

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Date: July 9, 2012

s/ James M. Harrington
James M. Harrington

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-4CERTIFICATE OF SERVICE

Case 4:12-cv-00298-DCB Document 14-1 Filed 07/09/12 Page 1 of 2

EXHIBIT A

Case 4:12-cv-00298-DCB Document 14-1 Filed 07/09/12 Page 2 of 2

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http://images.azcc.gov/scripts/cgi/dwispart2.pl?COMMAND=4&SESS...

Case 4:12-cv-00298-DCB Document 14-2 Filed 07/09/12 Page 1 of 3

EXHIBIT B

7/9/2012 4:24 PM

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http://images.azcc.gov/scripts/cgi/dwispart2.pl?COMMAND=4&SESS...

Case 4:12-cv-00298-DCB Document 14-2 Filed 07/09/12 Page 2 of 3

7/9/2012 4:24 PM

3 of 3

http://images.azcc.gov/scripts/cgi/dwispart2.pl?COMMAND=4&SESS...

Case 4:12-cv-00298-DCB Document 14-2 Filed 07/09/12 Page 3 of 3

7/9/2012 4:24 PM

Case 4:12-cv-00298-DCB Document 14-3 Filed 07/09/12 Page 1 of 2

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Slep-Tone Entertainment Corporation
et al.,
Plaintiffs,
v.

Case No.: 4:12-CV-298-TUC-DCB
ORDER FOR ALTERNATIVE
SERVICE

Gary Anthony Granito et al.,
Defendants.
This matter is before the Court upon the motion of the Plaintiffs pursuant to
Fed. R. Civ. P. 4(e)(1), Ariz. R. Civ. P. 4.1(m), and Ariz. Rev. Stat. § 29-606 for an
order authorizing service of process upon Defendant Tony G DJ, LLC by service
upon the Arizona Corporation Commission as provided in Ariz. Rev. Stat. § 29606(b). The Plaintiffs report that Defendant Granito, Defendant Tony G DJ, LLC’s
registered agent, is avoiding service of process.
The Court finds that the designation of a service address that sits on private
property behind a locked gate, coupled with Mr. Granito’s avoidance of service of
process, is a failure to maintain a statutory agent at the address shown on the
records of the Arizona Corporation Commission, within the meaning of § 29-606.
Accordingly, the Plaintiff’s motion is GRANTED, and it is therefore
ORDERED that the Plaintiff is hereby authorized pursuant to Fed. R. Civ. P.
4(e)(1), Ariz. R. Civ. P. 4.1(m), and Ariz. Rev. Stat. § 29-606(b) to complete
service of process upon Defendant Tony G DJ, LLC in this case by service on the

Case 4:12-cv-00298-DCB Document 14-3 Filed 07/09/12 Page 2 of 2

Arizona Corporation Commission as statutory agent, in the manner designated in §
29-606(b) and Ariz. R. Civ. P. 4(m).

IT IS SO ORDERED.

Dated:
David C. Bury
United States District Judge


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