ORLANDO — A federal judge has dismissed a lawsuit RCI Hospitality Holdings, Inc. filed against Junkyard Saloon/Bombshell's Tavern LLC on trademark claims.
U.S. District Judge Roy Dalton, Jr. filed the order on April 21, 2020 in the U.S. District Court Middle District of Florida Orlando Division.
RCI sued Bombshell's for injunctive relief and damages. Bombshell's didn't respond, so RCI received a clerk's entry of default against it. RCI tried three times to get a default judgement, but each one was denied by Magistrate Judge Embry Kidd who also recommended to dismiss the case since RCI didn't prove it properly served Bombshell's.
RCI disagreed with Kidd's report and recommendation and asked the court to grant their motion. The listed seven specific objections that fall under just two categories: they showed service of process was proper and the case shouldn't be closed.
Judge Dalton found that although Judge Kidd incorrectly used the corporation service rules instead of the ones that apply to limited liability companies, but even under those rules RCI failed to prove service was correct. The law states when serving an LLC the plaintiff may give the documents to a registered agent or an employee. The process server gave the complaint and a copy of the summons to a bartender at the business.
He also found the remainder of Kidd's R&R was correct. Dalton also said Kidd's dismissal recommendation was "dead on," even if he scrutinized the wrong service of process statute.
"RCI had three chances to show default. Three times RCI failed. And now, with its objection and amended affidavit, RCI blew a fourth chance. Enough," he wrote in his order.
Judge Kidd had previously warned RCI that repeated failure would constitute a case dismissal.
Dalton ordered parts of Judge Kidd's R&R Report be adopted and rejected in another part. He also denied RCI's motion to default and dismissed their amended complaint, directing the clerk to officially close the case.