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Gift Card Impressions, LLC v. Group Services Limited

United States District Court, Tenth Circuit

July 12, 2013

GIFT CARD IMPRESSIONS, LLC Plaintiff,
v.
GROUP SERVICES LIMITED, et al., Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, United States District Judge

Plaintiff Gift Card Impressions, LLC (“GCI”) filed suit against Defendants Group Services Limited (“GSL”), PTI Group, Inc. (“PTI”), Todd Grisoff (“Grisoff”), and Warren Shaeffer (“Shaeffer”), seeking damages related to the parties’ business dealings in China. Plaintiff alleges claims for breach of contract against Defendant GSL, false invoicing against Defendant PTI, and civil conspiracy, fraudulent and negligent misrepresentation against all Defendants. This matter comes before the Court on Defendant GSL’s Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) (Doc. 9).[1] The motion is fully briefed, and the Court is prepared to rule. As explained more fully below, the Court quashes Plaintiff’s service with respect to Defendant GSL, denies the motion to dismiss, and grants Plaintiff additional time to effect service of process on GSL.[2]

I. Legal Standard

The Court evaluates Defendant GSL’s insufficient service claim under Rule 12(b)(5). Once a defendant raises a defense under Rule 12(b)(5), the burden shifts to the plaintiff to make a prima facie case that process was served properly.[3] When considering whether service was sufficient, a court may consider any “affidavits and other documentary evidence” submitted by the parties and must resolve any “factual doubts” in favor of the plaintiff.[4]

II. Background

On March 22, 2012, Plaintiff, Defendants, and others entered into the Settlement Agreement (the “Agreement”). As part of the Agreement, Defendant GSL agreed to pay Plaintiff $106, 500.58 in exchange for Plaintiff agreeing to release Defendants “from any and all debts, claims, demands, liabilities, personal injuries, obligations, [and] causes of action.”[5]

Included in the Agreement was Paragraph 5, which reads:

GCI contends that it may have claims in China relating to the practice by Asian contract manufacturers of delegating GSL orders to other contract manufacturers for production, potentially at a profit. GSL promises to cooperate with and to reasonably assist GCI in the investigation and prosecution of any such claims.[6]

Plaintiff alleges that Paragraph 5 was “critical consideration” for the Agreement.[7] Under Paragraph 11 of the Agreement titled “Notices, ” “any notice or communication given or permitted under this Agreement” should be addressed to GSL as:

GROUP SERVICES LIMITED,
Attn: Todd Grisoff, Director
871 Midpoint Drive
O’Fallon, MO 63366[8]

On June 29, 2012, Plaintiff wrote GSL requesting documents pursuant to the provisions of Paragraph 5. Defendant GSL did not send the requested documents even after Plaintiff sent two additional letters, on July 19 and August 14. Plaintiff alleges that GSL’s failure to send these documents violated Paragraph 5 of the Agreement and constituted “a material failure of consideration.”[9] On November 5, 2012, Plaintiff filed suit in the Johnson County, Kansas district court, seeking to sue GSL on Count I over alleged breach of Paragraph 5 of the Agreement; Defendant PTI Group, Inc. on Count II over alleged false invoicing; and Defendants on Counts III through V over alleged civil conspiracy, fraudulent, and negligent misrepresentation. Plaintiff attempted to serve GSL via certified mail, return receipt requested, at the address listed in Paragraph 11 of the Agreement and ...


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