Johnson et al v. Smith Mortimer et al

Filing 28

ORDER: This case is hereby dismissed without prejudice. See order for details. The Clerk is directed to close the case. Signed by Judge Virginia M. Hernandez Covington on 7/20/2011. (CAC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANDRE JOHNSON, et al.,
Plaintiffs,
v.
Case No.
JONATHAN SMITH MORTIMER, T.V.T.,
BME,

8:10-cv-990-T-33AEP

Defendants.
______________________________/
ORDER
This matter is before the Court pursuant to Plaintiff’s
Response to Order to Show Cause (Doc. # 27) filed on July 11,
2011. On June 27, 2011, the Court entered an Order to Show
Cause

why

this

action

should

not

be

dismissed

without

prejudice for failure to timely effect service of process.
Plaintiff responded that two Defendants had been served. For
the reasons that follow, the Court dismisses the case without
prejudice.
I.

Background
Plaintiff Andre Johnson filed suit in this Court on April

26, 2010, alleging violations of the Lanham Act and the First
and Fifteenth Amendments against Defendants Jonathan Smith
Mortimer, T.V.T. and BME. (Doc. # 1). Mr. Johnson also filed
a motion for leave to proceed in forma pauperis on April 26,

2010 (Doc. # 2), which was granted on May 26, 2010 (Doc. # 7).
Mr. Johnson filed an Amended Complaint on May 25, 2010,
attaching

as

exhibits

proof

of

copyright

and

proof

of

distribution of his CD by Amazon.com. (Doc. # 6).
Summonses issued as to each Defendant on May 26, 2010.
(Doc. # 9). Service returned unexecuted as to Defendants
Mortimer and BME on July 27, 2010 (Doc. # 12), and as to
Defendant T.V.T. on September 24, 2010 (Doc. # 13). On October
6, 2010, the Court entered an Order to Show Cause why this
action should not be dismissed without prejudice for failure
to perfect service within 120 days of filing the complaint.
(Doc. # 14). Mr. Johnson filed a response on October 19, 2011
(Doc. # 15).
The

Court

construed

the

response

as

a

motion

for

extension of time to perfect service, and directed Mr. Johnson
to provide the Clerk with updated summonses with correct
addresses by December 28, 2010. (Doc. # 16). Then, on December
30, 2010, the Court granted Mr. Johnson a forty-five-day
extension, up to and including February 11, 2011, to do so.
(Doc. # 17). Summons issued as to Mortimer and BME on January
3, 2011, with return of service unexecuted on February 9,
2011. (Doc. ## 18-20).
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On February 10, 2011, the Court granted Mr. Johnson an
additional forty-five-day extension, up to and including March
28, 2011, to perfect service. (Doc. # 21). Alias summons
issued as to Mortimer and BME on March 30, 2011. (Doc. # 23).
The

Court

granted

Mr.

Johnson

a

final

forty-five-day

extension, up to and including April 30, 2011, on March 31,
2011 (Doc. # 24). Service was finally effected as to Mortimer
on May 4, 2011 (Doc. # 25).
On June 27, 2011, the Court entered an Order to Show
Cause

why

this

action

should

not

be

dismissed

without

prejudice for failure to timely effect service of process.
(Doc. # 26). Mr. Johnson responded that service had been
effected as to Mortimer, who Johnson avers is “owner” of BME.
(Doc. # 27). However, Johnson did not mention T.V.T., who
still has not been served.
II.

Analysis
Federal

Rule

of

Civil

Procedure

4

provides

that

a

plaintiff must serve defendants within 120 days after the
complaint is filed with the court. If a defendant is not
served within 120 days, “the court – on motion or on its own
after notice to the plaintiff – must dismiss the action
without prejudice.” Fed. R. Civ. P. 4(m).
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Mr. Johnson filed his Complaint on April 26, 2010. As of
July 20, 2011, service has not been effected as to all
Defendants. Mr. Johnson notes that service has been perfected
as to Mortimer, who is “owner” of BME. The Court therefore
accepts that service has been perfected as to BME as well.
However, Mr. Johnson makes no mention of T.V.T. Indeed,
service has not been attempted as to T.V.T. since May 26,
2010.
The return of service unexecuted as to T.V.T. indicates
that the current occupant of T.V.T.’s last known address
believes T.V.T. to be “no longer in business.” (Doc. # 13). Be
that as it may, the Court cannot proceed based upon some third
party’s assumption of T.V.T.’s status. If Mr. Johnson wishes
to dismiss his claim against T.V.T., he has not informed this
Court. Therefore, service has not been effected as to all
Defendants despite multiple extensions of time and warnings by
the Court over the course of many months. The Court finds this
to be sufficient cause to dismiss this case without prejudice.
Furthermore,

Defendants

Mortimer

and

BME

have

not

responded in any way to the Complaint, and are not represented
by counsel. Pursuant to Federal Rule of Civil Procedure
12(a)(1)(A)(1), a defendant has 21 days after being served
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with the summons and complaint to answer or otherwise respond.
Because service was effected on May 4, 2011, a responsive
pleading or motion was due from Mortimer and BME by May 25,
2011.
Local

Rule

1.07(b)

sets

forth

a

plaintiff’s

responsibilities should a defendant fail to respond:
When service of process has been effected but no
appearance or response is made within the time and
manner provided by Rule 12, Fed. R. Civ. P., the
party effecting service shall promptly apply to the
Clerk for entry of default pursuant to Rule 55(a),
Fed. R. Civ. P., and shall then proceed without
delay to apply for a judgment pursuant to Rule
55(b), Fed. R. Civ. P., failing which the case
shall be subject to dismissal sixty (60) days after
such service without notice and without prejudice;
provided, however, such time may be extended by
order of the Court on reasonable application with
good cause shown.
Mr. Johnson has not applied for entry of default against
Mortimer or BME, or requested an extension of time to do so.
The case was therefore subject to dismissal without notice and
without prejudice as of July 3, 2010, pursuant to Local Rule
1.07(b).
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

This case is hereby dismissed without prejudice.

(2)

The Clerk is directed to close the case.
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DONE and ORDERED in Chambers in Tampa, Florida, this 20th
day of July 2011.

Copies: All Counsel and Parties of Record

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