Therrien v. Dean et al

Filing 23

ORDER: Defendants' motions to dismiss 18 19 are DENIED. Plaintiff's motions for extensions of time 20 21 are GRANTED. Defendant Bustamante-Munt's Motion for Leave to File a Reply 22 is DENIED as moot. Plaintiff shall have 60 days from the date of this Order to serve Defendants Eduardo Bustamante-Munt and Robert Campbell. Signed by Judge James S. Moody, Jr on 10/31/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
KENNETH THERRIEN,
Plaintiff,
v.

Case No: 5:16-cv-375-Oc-30PRL

EDUARDO BUSTAMANTE-MUNT,
SHERWIN SCOTT, ROBERT
CAMPBELL, WALTER RAY, JOHN
DOES 1-3 and SHERIFF OF MARION
COUNTY, FLORIDA,
Defendants.

ORDER
THIS CAUSE comes before the Court on Defendant Eduardo Bustamante-Munt's
Motion to Dismiss Plaintiff's Complaint for Lack of Prosecution (Doc. 18), Plaintiff
Kenneth Therrien's response in opposition (Doc. 20), Defendant Robert Campbell's Motion
to Dismiss for Insufficient Service of Process and Lack of Personal Jurisdiction (Doc. 19),
and Plaintiff's response in opposition (Doc. 21). In his responses, Plaintiff asks the Court
to grant an extension for him to effect service on Bustamante-Munt and Campbell, which
the Court construes as a motion for extension of time. Having considered the filings and
the relevant law, the Court concludes Plaintiff should be allowed additional time to serve
Defendants Bustamante-Munt and Campbell.
On June 3, 2016, Plaintiff filed this § 1983 action against Bustamante-Munt,
Campbell, several other Marion County Sheriff’s Office deputies, and the Marion County

Sheriff. (Doc. 1). The claims arise from an incident that occurred on June 5, 2012, and for
which the statute of limitations was set to run on June 5, 2016. On July 11, 2016, the Sheriff
and two deputies answered the complaint (Doc. 8), but neither Bustamante-Munt nor
Campbell answered. Instead, Bustamante-Munt and Campbell made a limited appearance
to move to dismiss the complaint without prejudice due to lack of service. However, such
a remedy would effectively prevent Plaintiff from ever bringing the claim since the statute
of limitations has now expired for him to do so.
In response, Plantiff argues that he attempted to serve Bustamante-Munt and
Campbell. Plaintiff’s sent a process server to the Sheriff’s Office, but the server was told
neither Bustamante-Munt nor Campbell still worked there. The Sheriff’s Office also
refused to provide any information regarding their location. Plaintiff also asks for an
extension of time to serve Bustamante-Munt and Campbell.
The Court concludes Plaintiff should be afforded a 60-day extension of time to serve
Bustamante-Munt and Campbell. Federal Rule of Civil 4(m) allows the Court to extend the
time for a plaintiff to serve a defendant for good cause. Here, Plaintiff has made efforts—
however minimal—to effectuate service, and should be allowed additional time to serve
Bustamante-Munt and Campbell. Plaintiff is authorized to use discovery to locate
Bustamante-Munt and Campbell so service can be completed within 60 days.
Accordingly, it is ORDERED AND ADJUDGED that:
1.

Defendants’ motions to dismiss (Docs. 18 and 19) are DENIED.

2.

Plaintiff’s motions for extensions of time (Docs. 20 and 21) are GRANTED.

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3.

Defendant Bustamante-Munt’s Motion for Leave to File a Reply (Doc. 22)
is DENIED as moot.

4.

Plaintiff shall have 60 days from the date of this Order to serve Defendants
Eduardo Bustamante-Munt and Robert Campbell.

DONE and ORDERED in Tampa, Florida, this 27th day of October, 2016.

Copies furnished to:
Counsel/Parties of Record

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