Edwards v. City of Fort Myers et al

Filing 177

ORDERED: Defendant's Motion for Summary Judgment (Doc. 174) is DENIED without prejudice. Signed by Judge Sheri Polster Chappell on 11/16/2021. (AEH) Modified on 11/17/2021 (AEH).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DERICK EDWARDS,
Plaintiff,
v.

Case No: 2:19-cv-711-SPC-NPM

GUILLERMO MONMANY,
JAMES HEUGLIN, BRIAN
RHOTON, ARTURO
GONZALEZ, JR. and
CARMINE MARCENO,
Defendants.
/
ORDER1
Before the Court is Defendant Arturo Gonzalez’s Motion for Summary
Judgment (Doc. 174). Pro se Plaintiff Derick Edwards did not timely respond. 2
But it is unclear whether Edwards received the Motion or service was proper.
According to Gonzalez’s certificate of service, he filed the Motion on CM/ECF,
“which will send a copy” to Edwards. (Doc. 174 at 15). There are three issues.

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1

Because service on Edwards is presumably by mail, he likely had three extra days to
respond (i.e., twenty-four days). Fed. R. Civ. P. 6(d); see also Jackson v. Sec’y of Fla. Dep’t of
Corr., 791 F. App’x 1, 2 & n.1 (11th Cir. 2019).
2

First—as the Court understands it—CM/ECF does not automatically
mail filings to pro se litigants who are not on the platform. Because the Court
never granted CM/ECF access to Edwards, he may not even have the Motion.
Second, Gonzalez’s service on Edwards violates Rule 5. Parties can serve pro
se litigants in several ways, including by mail or e-mail (with consent). Fed. R.
Civ. P. 5(b)(2)(C), (E). It appears Gonzalez believes he can serve Edwards by
e-filing. Yet the Rules only allow such service on a CM/ECF “registered user.”
Fed. R. Civ. P. 5(b)(2)(E). Again, Edwards does not have that permission. And
third, Gonzalez’s certificate lists Edwards’ old mailing address. If service is by
mail, Gonzalez must use Edwards’ most current address.
Given these issues and Edwards’ nonresponse, the Court denies the
Motion without prejudice. Gonzalez can refile and properly serve an amended
motion. Before doing so, Gonzalez should review the typography requirements
in Local Rule 1.08. The Motion appears noncompliant.
Accordingly, it is now ORDERED:
Defendant’s Motion for Summary Judgment (Doc. 174) is DENIED
without prejudice.
DONE and ORDERED in Fort Myers, Florida on November 16, 2021.

Copies: All Parties of Record

2