Freeman v. Florida Department of Professional Regulation et al

Filing 70

ORDER -- The claims asserted against Defendants Uriel Ortiz, Murtice Tucker, Tockay Laochareum, Rafael Berrios, and Cynthia Hill are DISMISSED WITHOUT PREJUDICE for failure to prosecute. Signed by Judge Roy B. Dalton, Jr. on 2/3/2015. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HAROLD WAYNE FREEMAN,
Plaintiff,
v.

Case No. 6:14-cv-333-Orl-37DAB

FLORIDA DEPARTMENT OF
BUSINESS & PROFESSIONAL
REGULATION; FLORIDA DIVISION OF
ALCOHOLIC BEVERAGE AND
TOBACCO; METROPOLITAN BUREAU
OF INVESTIGATION; JOSH MOYER;
CYNTHIA HILL; ELLEN CRABILL;
TOCKAY LAOCHAREUM; MURTICE
TUCKER; RAFAEL BERRIOS; and
URIEL ORTIZ,
Defendants.
ORDER
This cause is before the Court on the Plaintiff’s Response to Order to Show Cause
(Doc. 65), filed January 15, 2015.
On June 6, 2014, Harold Wayne Freeman (“Plaintiff”) filed an amended complaint
naming Josh Moyer, Cynthia Hill, Ellen Crabill, Tockay Laochareum, Mutrice Tucker,
Rafael Berrios, and Uriel Ortiz (“Individual Defendants”) as additional defendants.
(Doc. 32.) After initiating suit, no summons issued, and Plaintiff did not file proof of service
with the Court on or before October 6, 2014, as required under Federal Rules of Civil
Procedure 4(b), (c)(1), (d), and (m). Consequently, on November 24, 2014, this Court
entered an Order directing the Plaintiff to show cause, no later than December 12, 2014,
why his claims should not be dismissed against the Individual Defendants for failure
comply with the service of process requirements set forth in the Federal Rules of Civil

Procedure. (Doc. 52.) On December 5, 2014, Plaintiff filed a Motion for Extension of Time
to file his amended complaint and to obtain legal counsel. (Doc. 53.) On December 17,
2014, Judge Baker granted Plaintiff’s request for an extension, and directed Plaintiff to
file his amended complaint and to serve the Individual Defendants on or before December
31, 2014. (Doc. 55.) Despite the fact that Plaintiff was granted an extension for service,
he waited until December 31, 2014, the extended service deadline, to obtain summons
for six of the seven Individual Defendants. 1 Accordingly, on January 7, 2015, this Court
entered an Order directing the Plaintiff to show cause why his claims against the Individual
Defendants should not be dismissed for failure to comply with Judge Baker’s Order, which
required Plaintiff to serve the Individual Defendants on or by December 31, 2014.
(Doc. 63.)
On January 15, 2015, Plaintiff filed his response to the Court’s Show Cause Order.
(Doc. 65.) Here, Plaintiff asserts that good cause exists for the late service because Judge
Baker’s Order was not received by him until December 24, 2014, leaving him only 3 days
to file the amended complaint and serve the Individual Defendants. The Court finds
Plaintiff’s assertion for good cause unpersuasive.
On November 24, 2014, this Court issued an Order granting Plaintiff leave to file
an amended complaint and directing Plaintiff to serve the Individual Defendants.
(Doc. 52.) Thus, Plaintiff was aware that he needed to serve the Individual Defendants
well before the December 24, 2014, deadline set by Judge Baker. Judge Baker’s
extension was not intended as a means for Plaintiff to procrastinate, its purpose was to

1

Plaintiff only obtained summons for all Individual Defendants, except, Uriel Ortiz
(Docs. 56–62.)

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give the Plaintiff additional time to fulfill his obligation. Plaintiff failed to explain what he
was doing for an entire month between this Court’s first Order, putting him on notice of
his failure of service, and Judge Baker’s Order, granting him an extension of service.
Moreover, to this date, February 2, 2015, Plaintiff still has not served all of the Defendants.
Plaintiff suggests that his belated service is also justified by his challenge with
obtaining all of the correct addresses for the Individual Defendants. However, Plaintiff has
not alleged or presented any proof showing that he has conducted a diligent search or
inquiry. Rather than some factor outside Plaintiff's control, it appears that the untimely
service here was caused by a simple lack of diligence on the part of Plaintiff. As noted
before, Plaintiff waited until the extension deadline to even obtain a summons for each
Defendant. To date, only two of the seven Individual Defendants have been served—
Ellen Crabill and Josh Moyer. Although the response includes a conclusory assertion that
the remaining Individual Defendants are “in fact being served”, there is no proof that
Plaintiff has even provided summons to a process server for the remaining Individual
Defendants.
In sum, despite having ample opportunity to timely serve all of the Individual
Defendants, Plaintiff has failed to do so. More than 76 days have passed since the
deadline for proper service on the Individual Defendants in this action (see
Fed. R. Civ. P. 4(m)), and Plaintiff still has not submitted satisfactory proof of service for
Uriel Ortiz, Murtice Tucker, Tockay Laochareum, Rafael Berrios, and Cynthia Hill.
Accordingly, this action is due to be dismissed against the defendants whom Plaintiff has
failed to serve. See Abele v. Hernando Cnty., 161 F. App’x 809, 812–13 (11th Cir. 2005)
(per curiam) (affirming dismissal for failure to timely serve defendants by extended service

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deadline where delay was caused by plaintiff’s lack of diligence and evidence did not
show evasion of service).
CONCLUSION
Accordingly, hereby ORDERED AND ADJUDGED that:
(1)

The claims asserted against Defendants Uriel Ortiz, Murtice Tucker, Tockay
Laochareum, Rafael Berrios, and Cynthia Hill are DISMISSED WITHOUT
PREJUDICE for failure to prosecute.

(2)

The Clerk is DIRECTED to terminate Uriel Ortiz, Murtice Tucker, Tockay
Laochareum, Rafael Berrios, and Cynthia Hill as Defendants to this action.

DONE AND ORDERED in Chambers in Orlando, Florida, on February 3, 2015.

Copies:
Counsel of Record
Pro Se Plaintiff

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