Fusic v. King Plastic Corporation et al

Filing 19

ORDER granting 16 Plaintiff's Motion for Extension of Time. Plaintiff's completed service documents and copies of the Complaint, submitted to the Clerk on September 27, 2017, and the subsequent Summons issued by the Court on September 29, 2017 (Doc. 15 ) are deemed timely. Signed by Magistrate Judge Carol Mirando on 10/6/2017. (KBR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THOMAS FUSIC, on behalf of himself
and others similarly situated
Plaintiff,
v.

Case No: 2:17-cv-390-FtM-38CM

KING PLASTIC CORPORATION,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion for
Extension of Time (Doc. 16) filed on September 29, 2017. On July 21, 2017 the Court
granted Plaintiff’s motion to proceed in forma pauperis and provided Plaintiff thirty
(30) days to prepare and forward completed service documents, along with sufficient
copies of the Complaint, to the Clerk for service by the United States Marshal. Doc.
12 at 2.

Three days later, Plaintiff provided a copy of the Complaint, Notice of

Waiver of Service of Summons and Waiver of Service of Summons to defense counsel.
Doc. 16-2. Plaintiff requested that defense counsel respond within three business
days and advise if he would accept service on his client’s behalf. Id. Plaintiff alleges
that defense counsel did not timely respond. Doc. 16 at 2. As such, Plaintiff did not
have sufficient time to prepare and forward the required documents to the Clerk
before the Court’s deadline. Id. Plaintiff forwarded the required documents to the
Clerk for service on September 27, 2017 (Doc. 16-2), and the Court issued the
summons on September 29, 2017 (Doc. 15).

According to the Federal Rules of Civil Procedure, the Court may, for good
cause, extend the time “on motion made after the time has expired if the party failed
to act because of excusable neglect.”

Fed. R. Civ. Pro. R. 6(b)(1)(B).

The

determination of whether neglect is excusable is “an equitable one, taking account of
all relevant circumstances surrounding the party's omission.” Pioneer Inv. Services

Co. v. Brunswick Associates Ltd. Partn., 507 U.S. 380, 395 (1993).
Here, there is minimal danger of prejudice to the non-moving party as defense
counsel was provided a copy of the Complaint on July 24, 2017. See Doc. 16-2. The
length of the delay is relatively short and the impact on judicial proceedings in this
case will be minimal. See Doc. 16. Plaintiff delayed his filing to see if he could
obtain a waiver of service from Defendant (See id. at 2), and it appears to the Court
that Plaintiff was acting in good faith.

As such, the Court finds that Plaintiff’s

neglect was excusable and he has shown good cause for the delay. Therefore, the
motion is due to be granted.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff’s Motion for Extension of Time (Doc. 16) is GRANTED.

2.

Plaintiff’s completed service documents and copies of the Complaint,

submitted to the Clerk on September 27, 2017, and the subsequent Summons issued
by the Court on September 29, 2017 (Doc. 15) are deemed timely.

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DONE and ORDERED in Fort Myers, Florida on this 6th day of October, 2017.

Copies:
Counsel of record

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