Konieczko et al v. Orange County Govt. et al

Filing 29

ORDER re 22 Court Order & 23 Plaintiffs' Objection and Denials. The Plaintiffs' Objection and Denial 23 is hereby STRICKEN. The Second Amended Complaint 15 is DISMISSED WITHOUT PREJUDICE. The Clerk of Court is DIRECTED to terminate any pending motions and thereafter close the file. Signed by Judge Paul G. Byron on 1/17/2023. (SJB)

Case 6:22-cv-01451-PGB-DCI Document 29 Filed 01/17/23 Page 1 of 4 PageID 377

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LAWRENCE W. KONIECZKO
and LAURIE F. KONIECZKO,
Plaintiffs,
v.

Case No: 6:22-cv-1451-PGB-DCI

ORANGE COUNTY GOVT., DOE
FIREMAN ’35;1, DOE FIREMAN
’35;2, DOE DEPUTY ’35;1, DOE
DEPUTY ’35;2, DOE DEPUTY
’35;3, DOE PARAMEDIC, 5 DCA
JUDGES, ROBERT LEBLANC,
DOE BAILIFF, DOE FIRE
MARSHAL, DOE 911
OPERATOR, ORANGE COUNTY
SHERIFF DEPUTY LIN,
PATRICIA O’DEA, CHARLES
HUDNALL, DOE DIRECTOR
and KENNETH NICHOLSON,
Defendants.

/
ORDER

This cause is before the Court sua sponte upon review of the docket. The
Plaintiffs have filed an “Objection and Denials” to the Court’s Order denying
Plaintiffs’ Motion to Vacate. (Docs. 22, 23). There is no procedural mechanism
allowing a party to file an “Objection and Denial” to an Order entered by the
District Court. Accordingly, the Plaintiffs’ “Objection and Denial” is Ordered
Stricken, and the Lawsuit is Dismissed Without Prejudice for failure to comply
with Federal Rule of Civil Procedure 4(m).

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I.

PROCEDURAL HISTORY
The Plaintiffs filed suit against the named Defendants on August 15, 2022

(Doc. 1) and have yet to serve any of the Defendants. On November 4, 2022, the
Plaintiffs filed a motion to extend time to serve the Defendants, and the Magistrate
Judge denied the motion without prejudice, because the Plaintiffs failed to
demonstrate good cause for extension of the deadline. (Docs. 11, 13). The Plaintiffs
then filed a Second Amended Complaint on November 9, 2022. (Doc. 15). On
November 15, 2022, the last day to serve the Defendants, the Plaintiffs filed a “Very
Urgent Motion to Extend Time to Serve Defendants,” and requested an extension
through June 15, 2023 to perfect service. (Doc. 17). The Magistrate Judge again
observed that the Plaintiffs failed to establish good cause for the extension, but
notwithstanding this deficiency the Magistrate Judge extended the date for
perfecting service of process to December 16, 2022. (Doc. 18).
The Plaintiffs, being dissatisfied with the Court’s Orders, petitioned the
Chief Judge for relief. (Doc. 19). That said, the Chief Judge is not the presiding
judge, and any appeal to the Chief Judge lacks a legal or procedural foundation and
has no significance. Accordingly, the Magistrate Judge entered an Order advising
the Plaintiffs of this fact. (Doc. 20). The Plaintiffs then filed another “Very Urgent
Time-Sensitive Motion,” directed to the undersigned, and asked the Court to
sustain their objections to the Magistrate Judge’s Order. (Doc. 21). The Court
considered the Plaintiffs’ objections to the Magistrate Judge’s Order, and the Court
agreed with the Magistrate Judge that the Plaintiffs had failed to establish “good

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cause” under Rule 4(m) to extend the deadline for serving the Defendants. (Doc.
22). Nonetheless, the Court granted a modest extension of the deadline to serve
the Defendants through January 16, 2023. (Id.). That deadline has now come and
gone.
II.

DISCUSSION
The Federal Rules of Civil Procedure are designed to promote efficiency. See

FED. R. CIV. P. 1. As such, a party who elects to file suit cannot delay indefinitely in
placing the opposing party on notice. Rule 4(m) provides that “[i]f a defendant is
not served within 90 days after the complaint is filed, the court—on motion or on
its own after notice to the plaintiff—must dismiss the action without prejudice
against that defendant or order that service be made within a specified time.”
(Emphasis added). This Court has previously placed the Plaintiffs on notice that
failure to serve the Defendants shall result in dismissal of the lawsuit without
prejudice. (Doc. 22). The Court has extended the deadline for service of process
twice, and still the Plaintiffs have failed to perfect service on any Defendant. The
Plaintiffs proffer justifications for their failure to comply with Rule 4(m), but the
reasons offered by the Plaintiffs concern the Plaintiffs’ inability to successfully
prosecute their case as opposed to obstacles to perfecting service of process on the
Defendants. The solution is simple: a party should not file suit until he or she is
ready. It is unfair to allow a lawsuit to languish while the Plaintiffs finish preparing
their case. For these reasons, the Second Amended Complaint is dismissed without
prejudice. Should the Plaintiffs decide to refile their complaint, they need to be

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mindful that Rule 4(m) is not aspirational. A party initiating a legal action cannot
sit on his or her rights and must serve the opposing parties within 90 days, absent
a showing of good cause. 1
III.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

The Plaintiffs’ Objection and Denials re: Order on Motion to Vacate
(Doc. 23) is STRICKEN;

2.

The Second Amended Complaint (Doc. 15) is DISMISSED
WITHOUT PREJUDICE; and

3.

The Clerk of Court is DIRECTED to terminate any pending motions
and close the file.

DONE AND ORDERED in Orlando, Florida on January 17, 2023.

Copies furnished to:
Counsel of Record
Unrepresented Parties
1

The Court is aware the Plaintiffs have mailed what purports to be a series of motions to Chief
Judge Corrigan. (Docs. 24, 25, 26, 27, 28). The Plaintiffs have previously been advised that no
judge other than the presiding judge has the authority to rule on motions. The Chief Judge’s
duties are administrative and do not curtail the authority of other co-equal Article III judges.
Moreover, the Plaintiffs are advised that motions for recusal are decided by the presiding
judge and not the Chief Judge. And the Chief Judge lacks authority to “vacate” the presiding
judge’s orders. The Court appreciates the Plaintiffs are appearing pro se and provides this
insight to educate — not insult — the Plaintiffs. Consequently, any relief requested in the
aforementioned motions is denied.

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