Case 0:19-cv-60490-RKA Document 12 Entered on FLSD Docket 07/12/2019 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

Civil Action No.: 0:19-cv-60490-RKA

BESWEET CREATIONS, LLC, )

a Florida limited liability company, )
)
Plaintiff, )
)
v. )
)
TRU REFLECTIONS, INC., )
a Texas corporation, )
)
Defendant. )
)

PLAINTIFF’S RESPONSE TO THE COURT ORDER TO SHOW CAUSE OR IN THE

ALTERNATIVE REQUEST FOR EXTENSION OF TIME TO SERVE DEFENDANT

Plaintiff, BeSweet Creations, LLC, (“Plaintiff”), by and through undersigned counsel,

hereby files this Response to the Court’s Order to Show Cause [D.E. 11] or in the alternative,

Plaintiff requests the Court grant Plaintiff additional time to effectuate service upon Defendant,

and in support states as follows:

1. On February 25, 2019, Plaintiff filed its Complaint against Defendant for

trademark infringement and false designation of origin under the Federal Trademark Act of

1946, 15 U.S.C. § 1051, et seq. (“Lanham Act”) [D.E. 1].

2. As detailed in the Complaint, Plaintiff is the owner of Federal Registration No.

5,033,503, for its BEAR design trademark in connection with online retail store services and/or

vitamin products. See Complaint [D.E. 1].

3. Plaintiff attempted to serve the summons and Complaint upon Defendant but the

process server was unsuccessful in his attempt to serve the Defendant. The process server

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performed a skip trace search but was unable to uncover an additional address to serve the

Defendant.

4. On April 6, 2019, Defendant, filed a Petition for Cancellation against Plaintiff’s

Federal Registration No. 5,033,503, which forms the basis of this lawsuit. The case Tru

Reflections, Inc. v. BeSweet Creations, LLC, Cancellation No.: 92071030, is currently

suspended by the Trademark Trial and Appeal Board pending final disposition of current action.1

5. Defendant’s Petition for Cancellation reflects its correspondence information as:

Tru Reflections Inc, 519 E. Interstate 30, #402, Rockwall, TX 75087.

6. As such, Plaintiff forwarded the newly discovered address to the process server to

continue its attempts to serve the Summons and Complaint on the Defendant.

7. On May 1, 2019, Plaintiff received an Affidavit of Service from the process

server notifying Plaintiff’s that the service address was for, “Pak-N-Post”, a mailbox business in

Texas. The manager of the business refused to give his name but confirmed that the Defendant

holds a mailbox at the location. The manager instructed the process server to put the Summons

and Complaint into an envelope and address the envelope to the Defendant and that he would put

it in the mailbox. See Return of Service [D. E. 8].

8. Fed. R. Civ. P. 4(h)(1), states that a corporation that is subject to suit under a

common name, must be served in a judicial district of the United States in either the manner

prescribed by Fed. R. Civ. P. 4(e)(1) for serving an individual or by delivering a copy of the

summons and of the complaint to an officer, a managing or general agent, or any other agent

authorized by appointment or by law to receive service of process and—if the agent is one

1
A screenshot of the docket showing active filings by the Defendant with the Trademark Trial
and Appeal Board while evading service in this case is attached hereto as Exhibit A.
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authorized by statute and the statute so requires—by also mailing a copy of each to the

defendant.

9. Fed. R. Civ. P. 4(e)(1), permits a Plaintiff to serve an individual within the United

States by following state law for serving a summons in the state where the district court is

located or where service is made.

10. Fla. Stat. § 48.081(3)(b), states as follows,

“If the address for the registered agent, officer, director, or principal place
of business is a residence, a private mailbox, a virtual office, or an
executive office or mini suite, service on the corporation may be made by
serving the registered agent, officer, or director in accordance with s.
48.031.”

11. Fla. Stat. § 48.031(6)(a), states as follows,

“If the only address for a person to be served which is discoverable

through public records is a private mailbox, a virtual office, or an
executive office or mini suite, substitute service may be made by leaving a
copy of the process with the person in charge of the private mailbox,
virtual office, or executive office or mini suite, but only if the process
server determines that the person to be served maintains a mailbox, a
virtual office, or an executive office or mini suite at that location.”

12. Therefore, Plaintiff respectfully requests that the Court find that the Plaintiff

effectuated service upon the Defendant on May 1, 2019, pursuant to Fed. R. Civ. P. 4(h) and Fla.

Stat. § 48.031(6)(a), and not set aside the Clerk’s entry of default for insufficient service or

dismiss the action.

13. Should the Court find that the Plaintiff has sufficiently effectuated process, the

Plaintiff respectfully requests that this Court grant Plaintiff additional time to effectuate service

upon the Defendant

14. The relief requested herein is sought in good faith and not for the purpose of delay

or any other dilatory purpose.

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WHEREFORE, Plaintiff, BeSweet Creations, LLC, respectfully requests that this

Honorable Court make the determination that Plaintiff has shown cause as to why the Court

should not set aside the Clerk’s entry of default for insufficient service of process and dismiss the

action without prejudice pursuant to Fed. R. Civ. P. 4(m), or in the alternative, grant Plaintiff an

extension of time to effective service upon Defendant, together with such other and further relief

as this Court deems just and proper under the circumstances.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via

transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized

manner for those counsel or parties who are not authorized to receive electronically Notices of

Electronic Filing on this 12th day of July 2019.

KOPELOWITZ OSTROW THE KEYS LAW FIRM, PLLC

FERGUSON WEISELBERG GILBERT Co-Counsel for the Plaintiff
Attorney for the Plaintiff 3550 SW 148th Ave, Suite 110
One West Las Olas Blvd., Suite 500 Miramar, Florida 33027
Fort Lauderdale, Florida 33301 954-519-2041(Office)
Telephone: (954) 525-4100 954-519-2042(Fax)
Facsimile: (954) 525-4300 954-519-2091(Direct)

By: /s/ David L. Ferguson_____ By: /s/_James Keys, III________

DAVID L. FERGUSON James G. Keys, III
Florida Bar No. 981737 Florida Bar No. 63943
ASHLEY N. ROSENBAUM Jkeys@keyslawfirm.com
Florida Bar No. 1002820
Ferguson@kolawyers.com
Rosenbaum@kolawyers.com

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