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Rosen v. Mystery Method

February 13, 2008

DONALD P. ROSEN, INDIVIDUALLY AND AS CLASS REPRESENTATIVE, PLAINTIFF,
v.
MYSTERY METHOD, INC., A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF CALIFORNIA, NICHOLAS BENEDICT, AKA SAVOY, AN INDIVIDUAL RESIDING IN CALIFORNIA, JON LEE, AKA SINN, AN INDIVIDUAL RESIDING IN CALIFORNIA, CHRIS HENDRICKS, AKA TENMAGNET, AN INDIVIDUAL RESIDING IN TORONTO, CANADA, PETER SERGEANT, AKA SHERIFF, AN INDIVIDUAL RESIDING IN LONDON, ENGLAND, ROBERT PLYLER, AKA THOMPSON PLYLER, AKA FUTURE, AN INDIVIDUAL RESIDING IN NEW YORK, NEW YORK, SCOTT DONNELY, AKA THE DON, AN INDIVIDUAL RESIDING IN CALIFORNIA, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Kocoras United States District Judge

MEMORANDUM OPINION AND ORDER

CHARLES P. KOCORAS, District Judge:

This matter is before the court on Defendant Scott Donnely ("Donnely")'s motion to disqualify Rosen as plaintiff's counsel pursuant to Rule 3.7 of the Illinois Rules of Professional Conduct and Local Rule 83.53.7, and Defendant Nicholas Benedict ("Benedict"), Defendant John Lee ("Lee"), and Mystery Method Corporation ("MMC")'s motions to dismiss Plaintiff Donald Rosen ("Rosen")'s two-count complaint for improper service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). For the foregoing reasons, Donnely, Benedict, and Lee's motions are denied and MMC's motion is granted.

BACKGROUND

On October 10, 2007, Rosen filed a two-count class action complaint (the "Complaint") against Benedict, Lee, MMC, Donnely, and three others. Count 1 alleges that Defendants participated in a RICO enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(a) and (b). Count 2 alleges that Defendants conspired to engage in a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c) and (d).

Donnely's Motion to Disqualify Rosen as Class Counsel

Donnely has filed a motion to disqualify Rosen as class counsel. Rosen has not yet applied for class certification in this matter. Without the existence of a class, it would be premature to decide whether Rosen or anyone else for that matter is qualified to be class counsel. Accordingly, Donnely's motion to disqualify Rosen is not ripe for adjudication.

Benedict and Lee's Motions to Dismiss for Improper Service

Benedict, Lee, and MMC each filed separate motions to dismiss for improper service. Rosen attacks Benedict and Lee's motions on procedural grounds, but argues against the legal basis of MMC's motion to dismiss. Accordingly, we will first discuss Benedict and Lee's motions.

Rosen argues that Benedict and Lee's motions are premature because they were filed prior to February 8, 2008.*fn1 Fed. R. Civ. P. 4(m) gives a plaintiff 120 days from the filing of the complaint to effectuate service on a defendant. In the instant case, Rosen filed suit against Benedict and Lee on October 10, 2007. As such, he has until February 8, 2008, to perfect service. Accordingly, Benedict and Lee's motion to dismiss for improper service are denied as premature.

MMC's Motion to Dismiss for Improper Service

Rosen argues against the legal sufficiency of MMC's motion to dismiss. As such, a review of the underlying facts will follow. Donnely is currently a resident of Los Angeles, California, and has been since 1993. He began working for MMC in February 2006. On July 13, 2007, he signed an agreement with MMC stating that he was an independent contractor. In his affidavit, Donnely explains that on October 15, 2007, he was not an officer, employee, registered agent, general agent, or managing agent for MMC. He further states that at no time during his entire tenure with MMC has he ever been authorized to accept service on MMC's behalf or ever accepted service on MMC's behalf.

On October 9, 2007, Rosen, claiming to be a columnist for a Chicago magazine, contacted Donnely via email and stated that he would like to interview Donnely while he was in town for a seminar. Donnely responded to Rosen's email the following day and the two eventually agreed to meet for the interview on October 15.

According to Donnely's affidavit, while Rosen was asking him questions about his work as an instructor for MMC, a man walked up to him, handed him a summons and the Complaint and told him that he had been served. Donnely explains that neither Rosen nor the ...


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