Miller v. City of Arcadia, Florida

Filing 38

ORDER re 35 Response filed by Lawrence A. Miller. Defendants Robert Allen, Martha Craven, Alice Frierson and Robert Hine are DISMISSED. The Clerk is DIRECTED to TERMINATE Defendants Robert Allen, Martha Craven, Alice Frierson and Robert Hine from the file. Signed by Judge Sheri Polster Chappell on 3/1/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LAWRENCE A. MILLER,
Plaintiff,
v.

Case No: 2:16-cv-36-FtM-38MRM

CITY OF ARCADIA, FLORIDA,
ALICE FRIERSON, MARTHA
CRAVEN, ROBERT ALLEN and
ROBERT HINE,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on Plaintiff Lawrence Miller’s Response to
Court’s Order to Show Cause (Doc. 35) filed on February 15, 2017. Plaintiff brought a
civil rights action against Defendant City of Arcadia (Doc. 1) on November 23, 2015. On
May 16, 2016, the Plaintiff filed an Amended Complaint (Doc. 21), adding four individual
Defendants Robert Allen, Martha Craven, Alice Frierson and Robert Hine. Nine months
later, the Court entered an Order to Show Cause (Doc. 34) why Plaintiff had not served
the Defendants added in the Amended Complaint within the timeframe prescribed in Rule
4(m) of the Federal Rules of Civil Procedure. Plaintiff’s limited efforts to comply with Rule

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4(m) hinge on communicating with City of Arcadia’s counsel. (Doc. 35). Defendant City
of Arcadia filed a Reply to Plaintiff’s Response to Order to Show Cause (Doc. 37) and
City of Arcadia’s counsel explained he “has not represented he would accept service” and
“does not represent any of those Defendants.”
If a plaintiff fails to serve a defendant within ninety days after the complaint is filed,
the court must dismiss the action without prejudice, unless good cause is shown. Fed. R.
Civ. P. 4(m). Good cause requires the showing that some “outside factor” was the reason
for failing to timely serve the defendants. Lepone-Dempsey v. Carroll Cty. Comm'rs, 476
F.3d 1277, 1282 (11th Cir. 2007). Inadvertence or negligence does not constitute good
cause. See id.
Plaintiff asserts that the “delay was not intentional” and “was the result of
excusable neglect” espoused under Rule 6(b) of the Federal Rules of Civil Procedure.
(Doc. 35). Courts have “equated” the concepts of good cause and excusable neglect.
Madison v. BP Oil Co., 928 F. Supp. 1132, 1137 (S.D. Ala. 1996). “A showing of good
cause requires at least ‘excusable neglect.’” Adams v. AlliedSignal Gen. Aviation
Avionics, 74 F.3d 882, 887 (8th Cir. 1996) (citations omitted); See also Kersh v. Derozier,
851 F.2d 1509, 1512 (5th Cir. 1988); Lowe v. Hart, 157 F.R.D. 550, 553 (M.D. Fla. 1994).
Here, no outside factor played a part in Plaintiff’s failure to serve the four individual
Defendants, and he fails to show otherwise.

Plaintiff’s actions were not diligent or

reasonable under the circumstances. Nor did Plaintiff request an extension of time for
service. Merely communicating with Defendant City of Arcadia’s counsel, without more,
does not constitute good cause for not serving the other Defendants.

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Even if good cause is not shown, a district court must consider any other
circumstances that may warrant an extension of time and has discretion to extend time
for service of process. See Lepone-Dempsey 476 F.3d at 1282; Horenkamp v. Van
Winkle And Co., 402 F.3d 1129, 1132 (11th Cir. 2005). Plaintiff indicates that dismissal
will “deny him his opportunity to have his case heard against those defendants.” (Doc.
35). Yet, he provides no analysis or authority whether dismissal will bar Plaintiff’s action
against the four Defendants. The Court sees no reason to extend time for service of
process.
Accordingly, it is now
ORDERED:
Defendants Robert Allen, Martha Craven, Alice Frierson and Robert Hine are
DISMISSED. The Clerk is DIRECTED to TERMINATE Defendants Robert Allen, Martha
Craven, Alice Frierson and Robert Hine from the file.
DONE and ORDERED in Fort Myers, Florida this 1st day of March 2017.

Copies: All Parties of Record

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