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Jackson Hewitt, Inc. v. Djsg Utah Tax Service

January 10, 2011

JACKSON HEWITT, INC. PLAINTIFF,
v.
DJSG UTAH TAX SERVICE, LLC, SHEILA AND DONALD GODBEHERE,
NATIONAL TAX NETWORK AND KATHRYN L. WARD DEFENDANTS.



The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh

NOT FOR PUBLICATION

OPINION

DENNIS M. CAVANAUGH, U.S.D.J.:

This matter comes before the Court upon Jackson Hewitt, Inc.'s ("Plaintiff") application for a preliminary injunction pursuant to Fed. R. Civ. Pro 65 enjoining Defendants DJSG Utah Tax Service, LLC, Donald and Sheila Godbehere, National Tax Network, LLC and Kathryn L. Ward, and Defendants' cross-motions to dismiss the complaint pursuant to Fed. R. Civ P. 4, Fed. R. Civ. P.12(b)(2) and Rule 12(b)(3), or in the alternative, to transfer venue to Arizona pursuant to 28 U.S.C.A. § 1404(a) and 28 U.S.C.A. § 1391(a). Pursuant to Fed. R. Civ. Pro 78, no oral argument was heard. After reviewing the submissions of the parties, and based on the following, Plaintiff's application for a preliminary injunction is granted andDefendant's cross-motion is denied.

I. BACKGROUND

Plaintiff Jackson Hewitt is a Virginia corporation with its principal place of business located in Parsippany, New Jersey. Defendant National Tax is an Arizona limited liability corporation with its principal place of business in Arizona. National tax is wholly owned by WSA Financial Services, LLC ("WSA"), a former Jackson Hewitt franchisee.. Defendant Ward owns WSA, and is the guarantor of National Tax's obligations under each of the franchise agreements between National Tax and Plaintiff. Defendant DJSG Utah Tax Service is an Arizona limited liability corporation with its principal place of business in Utah. Defendants Sheila and Donald Godbehere were co-guarantors of the franchise agreement between Jackson Hewitt and DJSG Utah Tax Service. The franchise agreements entered into between Jackson Hewitt and all Defendants gave Defendants the right to operate tax return businesses using Plaintiff's trade names, trademarks and service marks, logos, as well as Plaintiff's proprietary business methods and software.

On December 6, 2010 Jackson Hewitt commenced the instant cause of action by way of an Order to Show Cause, seeking a preliminary injunction compelling these Defendants amongst others, to adhere to their post-termination obligations pursuant to the parties' franchise agreements. The injunctive relief sought by Jackson Hewitt falls generally into four categories:

(1) removal of Jackson Hewitt signage from National Tax offices, (2) transfer of all Jackson Hewitt telephone numbers owned by Defendants to Jackson Hewitt, and notification by Defendants to the telephone company that Defendants no longer have the right to use such telephone numbers, (3) adherence to the two year non-compete provision of the franchise agreements, and (4) return to Jackson Hewitt of all client files. In light of Jackson Hewitt's application, this Court instructed all the parties in the underlying action to appear before U.S. Magistrate Judge Joseph A. Dickson in the hope that this matter could be resolved. Judge Dickson extended the briefing schedule to allow Defendants more time to prepare their responses. All Defendants subject to this Opinion were instructed to file their responses with the Court on or before December 27, 2010.*fn1 Section 28.2 of each of the franchise agreements contained an express provision whereby each Defendant consented to personal jurisdiction in "the United States District Court nearest to [Jackson Hewitt's] principal place of business, (presently the District of New Jersey, Newark Division)."

II. LEGAL STANDARD

A. Fed. R. Of Civ. P. 4

In matters involving service of process, as well as other matters, Courts are instructed to use their "judicial experience and common sense." See Ashcroft v. Iqbal, 29 S. Ct. 1937, 1950 (U.S. 2009). Moreover, "Rule 4(d)(3) does not require that the delivery of process be accomplished during a face to face meeting with the person upon whom service is to be effected. Nor does it require that it be surrounded by medieval formalism." O'Connor v. Altus, 67 N.J. 106, 127-128, 335 A.2d 545, 556 (N.J. 1975).

In New Jersey, "it must be shown that the agent had specific authority, express or implied, for the receipt of service of process." See Local 617, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Hudson Bergen Trucking Co. 182 N.J.Super. 16, 20, 440 A.2d 18, 20 (N.J.Super.A.D., 1981) Moreover, Sections 1097 and 1101 of Wright and Miller, Federal Practice and Procedure: Civil state that "the cases dealing with agency by appointment indicate that an actual appointment for the specific purpose of receiving process normally is expected."

A. Rules 12(b)(2) and 12(b)(3)

Fed. R. Civ. P. 12(b)(2) and Fed. R. Civ. P. Rule 12(b)(3) state in relevant part that "a party may assert the following defenses by motion: (2) lack of ...


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