Court grants motion to dismiss after defendant claims he was improperly served in lollipop patent infringement case

By Charmaine Little | Jan 24, 2019

NEW ORLEANS – The U.S. District Court for the Eastern District of Louisiana recently granted a motion to dismiss a patent infringement case filed by Topps regarding its “Juicy Drop Pop” lollipops after the defendant proved to be hard to find

In a Jan 17 ruling, U.S. District Judge Barry W. Ashe granted the motion to dismiss filed by Paul Joseph Lapeyrouse Jr., doing  business as Funtime Candy and Funtime (Xiamen) Candy Co., who had argued that there was a lack of sufficient service of process, and, alternatively, a lack of personal jurisdiction.

Topps initially sued Lapeyrouse and Funtime alleging the defendants violated Topps’ patent for the Juicy Drop Pop lollipop brand when Funtime released and sold its Squeezy Squirt Pop.  

Topps tried to subpoena Lapeyrouse and Funtime for documents related to another case in which Topps is suing the company that performed the marketing and distribution for the Squeezy Squirt Pop, court filings said. The process server made several attempts to serve the subpoena at an address in Marrero but to no avail and said no one ever answered the door, court filings said. At one point, the process server was told Lapeyrouse is hardly ever at the address and actually resides on a sailboat.

After more failed communications, Topps hired a private investigator to find Lapeyrouse and ended up suing Lapeyrouse and Funtime, leaving the documentation with one of Lapeyrouse’s acquaintances after not being able to reach him.

Lapeyrouse said there was an insufficient service of process and a lack of jurisdiction, stating Topps didn’t properly serve him court documents and that he doesn’t reside at the address where the documents were sent. court filings said. Lapeyrouse also said the person who received them actually lives in Oklahoma, so it was wrong to leave documents with her. 

The court agreed to dismiss the lawsuit.

“(The acquaintance) informed the process server that she did not live at that address,” the court pointed out. “Although Lapeyrouse has proved difficult to serve, Topps cannot rely on service that clearly does not comport with Rule 4(e).” That regulation states that one serving court documents has to either deliver it to the person individually, leave a copy at the person’s home with someone else who lives there, or issue a copy to an agent authorized to receive the service of process.

The court couldn’t deny the issue with Lapeyrouse being difficult to find and reiterated that Rule 4(m) says if a defendant isn’t served within 90 days of the complaint being filed with the court, the court has to either dismiss the case without prejudice or rule an order that the service be fulfilled in a certain period of time. 

The court noted that Topps  tried to serve Lapeyrouse, even though it was unsuccessful. and gave Topps an extra 90 days from the order to comply with Rule 4(e) in serving Lapeyrouse. Until then, the motion to dismiss is granted.

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