CASE 0:15-cv-04504-RHK-TNL Document 41 Filed 05/02/17 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Troy K. Scheffler, Plaintiff, Civ. No. 15-4504 (RHK/TNL) ORDER

v. Tapfury LLC, et al., Defendants.

This matter is before the Court sua sponte. Defendants have moved to dismiss or, in the alternative, for summary judgment, arguing among other things that Plaintiff did not properly effect service of process. Plaintiff has responded by moving to continue the hearing (and briefing) on Defendants’ Motion, asserting that he needs discovery on a number of topics, including “the material disputed fact[s] over proper service.” (Doc. No. 39 ¶ 6.) The Court has reviewed Defendants’ Motion and believes, among other things, that their arguments regarding service of process may well have merit. Plaintiff, of course, bears the burden of demonstrating service was proper. See, e.g., Roth v. Larson, Civ. No. 06-4574, 2008 WL 4527831, at *9 (D. Minn. Sept. 30, 2008) (Davis, J., adopting Report & Recommendation of Mayeron, M.J.); Broadway v. adidas Am., Inc., No. 3:07cv149, 2008 WL 2705566, at *3 (E.D. Ark. July 10, 2008). And without valid service, the Court lacks jurisdiction over Defendants, e.g., Printed Media Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993), in which case it cannot do anything

CASE 0:15-cv-04504-RHK-TNL Document 41 Filed 05/02/17 Page 2 of 2

more than “announce the [absence of jurisdiction] and dismiss[] the cause,” Ex Parte McCardle, 74 U.S. 506, 514 (1868). Accordingly, the validity of service of process must be determined in the first instance, and hence Plaintiff will be afforded a narrow opportunity to develop the facts he believes are necessary to establish that service was proper here. Based on the foregoing, and all the files, records, and proceedings herein, IT IS ORDERED as follows: 1.

The Motion to Continue Hearing (Doc. No. 39) is GRANTED IN PART;

2.

Defendants’ Motion to Dismiss shall be HELD IN ABEYANCE pending

further Order of the Court, and the hearing on the Motion, currently scheduled for May 23, 2017, is CANCELED; 3.

This matter is REFERRED to Magistrate Judge Leung to supervise a short

discovery period narrowly tailored to the validity of service of process; and 4.

Once discovery regarding service of process has been completed, Plaintiff

shall promptly proffer to the Court the evidence he believes establishes valid service, and Defendants may file a response to Plaintiff’s submission within 7 days thereafter. The Court will then resolve whether service was properly effected; if not, the matter will be dismissed, and if so, further briefing on the remaining arguments in the Motion to Dismiss will be scheduled.

Dated: May 2, 2017

s/Richard H. Kyle RICHARD H. KYLE United States District Judge