Evans et al v. Slezak et al

Filing 57

ORDER directing as follows: (1) the Magistrate Judge's 45 REPORT AND RECOMMENDATION is ADOPTED; (2) def Thomas Slezak's 48 Objections are OVERRULED; (3) the time for plfs to serve Mr. Slezak with the complaint is extended to 5/19/ 2017; and (4) def Slezak's 37 Motion to Dismiss and 39 Motion to Quash service are DENIED, as further set out in order. Signed by Chief Judge William Keith Watkins on 9/19/17. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
RUSSELL EVANS, et al.,
Plaintiffs,
v.
THOMAS SLEZAK, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CASE NO. 2:16-CV-159-WKW

ORDER
On July 26, 2017, the Magistrate Judge filed a Recommendation (Doc. # 45)
that Defendant Thomas Slezak’s motion to dismiss (Doc. # 37) and motion to quash
service (Doc. # 39) be denied. Mr. Slezak timely objected (Doc. # 48). Upon an
independent and de novo review of the record and Recommendation, Mr. Slezak’s
objections are due to be overruled, and the Recommendation is due to be adopted.
Mr. Slezak makes two points in his objections: (1) Mr. Slezak did not waive
service; and (2) Plaintiffs failed to produce evidence of “good cause” for why they
did not timely serve process upon Mr. Slezak. Neither point, even when assumed
for the sake of argument, compels the court to grant Mr. Slezak’s motions.
The Eleventh Circuit has made clear that Rule 4(m) of the Federal Rules of
Civil Procedure, which requires plaintiffs to perfect service “within 90 days after the
complaint is filed,” Fed. R. Civ. P. 4(m), gives the district court “discretion . . . to

extend the time for service, even in the absence of good cause.” Horenkamp v. Van
Winkle & Co., 402 F.3d 1129, 1131 (11th Cir. 2005). As the Magistrate Judge
pointed out in the Recommendation, Plaintiffs appear to have acted diligently in
attempting to serve Mr. Slezak. (Doc. # 45, at 3.) However, even if they had not,
this court could (and does) extend the time for service in its discretion.
Accordingly, it is ORDERED as follows:
1.

The Magistrate Judge’s Recommendation (Doc. # 45) is ADOPTED;

2.

Defendant Thomas Slezak’s objections (Doc. # 48) are OVERRULED;

3.

The time for Plaintiffs to serve Mr. Slezak with the Complaint is

extended to May 19, 2017; and
4.

Defendant Thomas Slezak’s Motion to Dismiss (Doc. # 37) and Motion

to Quash Service (Doc. # 39) are DENIED.
DONE this 19th day of September, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

2