Otto v. Blair et al

Filing 15

ORDER granting in part and denying in part 4 Plaintiff's Motion for Extension of Time to Serve Defendants Jason Williams and Ora Berry and to Permit Substituted Service Pursuant to 48.161 Florida Statutes. Signed by Magistrate Judge Philip R. Lammens on 11/4/2013. (AR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
PAUL OTTO,
Plaintiff,
v.

Case No: 5:13-cv-311-Oc-10PRL

CHRIS BLAIR, JASON WILLIAMS,
ORA BERRY, RAYMOND PIOTI and
JOSEPH TUSSEY
Defendants.

ORDER
This matter is before the Court on plaintiff’s Motion for Extension of Time to Serve
Defendants Jason Williams and Ora Berry and to Permit Substituted Service Pursuant to 48.161
Florida Statutes. (Doc. 4).
Plaintiff filed this action on August 30, 2012. (Doc. 1). Plaintiff contends that service of
the Complaint has been effected on all Defendants except Jason Williams and Ora Berry.
Plaintiff simply represents that “[n]umerous addresses have been attempted on both Defendants
pursuant to skip trace searches” but “Defendants have not been found at any of the addresses.”
(Doc. 4 at ¶1).

Based on these failed attempts, Plaintiff believes that Defendants are

nonresidents of the State of Florida or are concealing their whereabouts; and seeks additional
time to complete substituted service on the Florida Secretary of State pursuant to Florida Statutes
§ 48.161.
Federal Rule of Civil Procedure 4 allows a plaintiff to serve an individual in a judicial
district of the United States by “following state law for serving a summons in an action brought

in courts of general jurisdiction in the state where the district court is located or where service is
made. . .” Fed.R.Civ.P. 4(e)(1). Florida Statute § 48.161 provides in pertinent part:
When authorized by law, substituted service of process on a nonresident or a person who
conceals his or her whereabouts by serving a public officer designated by law shall be
made by leaving a copy of the process with a fee of $8.75 with the public officer or in his
or her office or by mailing the copies by certified mail to the public officer with the fee.
The service is sufficient service on a defendant who has appointed a public officer as his
or her agent for the service of process. Notice of service and a copy of the process shall
be sent forthwith by registered or certified mail by the plaintiff or his or her attorney to
the defendant, and the defendant’s return receipt and the affidavit of the plaintiff or his or
attorney of compliance shall be filed on or before the return day of the process or within
such time as the court allows. . .

A statute, such as § 48.161, that provides for substituted service must be strictly
construed, and the party seeking to effect substituted service has the burden of clearly justifying
its applicability. Young Spring Wire Corporation v. Smith, 176 So.2d 903 (Fla. 1965). In order
to justify the use of substituted service, “[t]he test . . . is not whether it was in fact possible to
effect personal service in a given case, but whether the [plaintiff] reasonably employed
knowledge at [his] command, made diligent inquiry, and exerted an honest and conscientious
effort appropriate to the circumstances, to acquire information necessary to enable [him] to effect
personal service on the defendant.” Verizon Trademark Services, LLC v. Producers, Inc., No.
8:10-cv-665-T-33EAJ, 2011 WL 3296812, at *5 (M.D.Fla. Aug. 2, 2011)(quoting Delancy v.
Tobias, 26 So.3d 77, 78 (Fla. App. Ct. 2010)).
Here, Plaintiff has failed to sufficiently show that Defendants are nonresidents or
concealing their whereabouts. Based on the limited information in the file – which appears to be
nothing more than speculation – the Court cannot find that Plaintiff’s counsel “reasonably
employed knowledge at [his] command, made diligent inquiry, and exerted an honest and
conscientious effort appropriate to the circumstances, to acquire information necessary to enable

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[him] to effect personal service on the defendant.” V
e
Verizon Tra
ademark Ser
rvices, 2011 WL
1
3296812, at *5; see also Levite v. Gaunt, 360 So.2d 112, 113 (F App. C 1978)(“W
en
,
Fla.
Ct.
Where
neither th affidavit nor the rec
he
cord reveal appropriate diligence i seeking t find the party
e
in
to
sought to be served, nor in establishing the fact that such party was indeed attem
o
f
h
mpting to co
onceal
himself, the mere filing of an af
ffidavit alleg
ging concealm
ment is an i
insufficient b
basis upon w
which
to predicate substitut service.”)
ted
Accordingly, Plaintiff’s request to permit subs
A
stituted serv
vice is due to be DEN
NIED
without prejudice to renewal upo a showing that substi
p
on
g
ituted serviced is justifie Howeve the
ed.
er,
Court wi GRANT Plaintiff an extension of time until D
ill
f
December 3 2013 to serve Defen
30,
ndants
Jason Wi
illiams and Ora Berry.
O
013.
DONE and ORDERED in Ocala, Flo
D
O
orida on Nov
vember 4, 20

Copies fu
urnished to:
Counsel of Record
Unrepres
sented Partie
es

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