Vazquez v. Lee County, Florida Board of County Commissioners

Filing 16

ORDER DENYING 9 Defendant Lee County, Florida Board of County Commissioners' Motion to Dismiss. Defendant has fourteen (14) days to answer or otherwise respond to this action. Signed by Judge Sheri Polster Chappell on 4/1/2016. (LMF) Modified on 4/1/2016 (LMF).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
VICTOR VAZQUEZ, an individual
Plaintiff,
v.

Case No: 2:15-cv-661-FtM-38CM

LEE COUNTY, FLORIDA BOARD
OF COUNTY COMMISSIONERS,
Defendant.
/
ORDER1
This matter comes before the Court on Defendant Lee County, Florida Board of
County Commissioners' Motion to Dismiss (Doc. #9) filed on February 23, 2016. Plaintiff
Victor Vazquez filed a Response in Opposition (Doc. #12) on March 3, 2016. The matter
is ripe for review.
Discussion
In April 2015, the Supreme Court adopted amendments to the Federal Rules of
Civil Procedure, including changing the timeframe for service under Rule 4(m) from 120
days to 90 days. These amendments took effect on December 1, 2015. Plaintiff initiated
this action on October 23, 2015, more than a month before the amendments became
effective. (Doc. #1). Yet Plaintiff waited 102 days, until February 2, 2016, to serve
Defendant. (Doc. #8). Astutely noting that the Court may apply either version of Rule

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4(m) on these facts, Defendant asks the Court to retroactively apply the recentlyamended version of Rule 4(m) and dismiss Plaintiff’s Complaint for failing to provide
timely service. (Doc. #9). While district courts maintain discretion to entertain such
requests, the Court declines to do so. See Silvious v. Pharaon, 54 F.3d 697, 700 (11th
Cir. 1995) (explaining, in the context of previous amendments, that district courts may
apply either the rule in effect when the complaint was filed or the rule in effect when
service was attempted or completed). The Court finds the pre-amended version of Rule
4(m), allowing 120 days for service, is just and practicable for this action. Therefore,
because Plaintiff timely served Defendant within 120 days, Defendant’s Motion will be
denied.
Accordingly, it is now
ORDERED:
Defendant Lee County, Florida Board of County Commissioners' Motion to Dismiss
(Doc. #9) is DENIED. Defendant has fourteen (14) days to answer or otherwise
respond to this action.
DONE and ORDERED in Fort Myers, Florida, this 1st day of April, 2016.

Copies: All Parties of Record

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