Brivik v. Law et al

Filing 137

ORDER: Defendants John Murray and Abraham Smajovits are dismissed from this action without prejudice. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 10/1/2012. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARK BRIVIK,
Plaintiff,
v.

Case No. 8:11-cv-2101-T-33TGW

JOHN MURRAY, ET AL.,
Defendants.
______________________________/
ORDER
This cause comes before the Court sua sponte.

Plaintiff

initiated this action against Defendants John Murray, Abraham
Smajovits, and others, on September 15, 2011. (Doc. # 1).

On

March 7, 2012, Plaintiff filed a motion requesting additional
time in which to effect service upon Murray and Smajovits.
(Doc. # 47).

The Court granted the motion on March 27, 2012,

but warned, “If Plaintiff is unable to serve these Defendants
by May 29, 2012, the Court will dismiss these Defendants
without prejudice.” (Doc. # 58).
A plaintiff generally must effect service of process
within 120 days after filing the complaint. Specifically,
Fed.R.Civ.P. Rule 4(m) provides:
If a defendant is not served within 120 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. But
if the plaintiff shows good cause for the

failure, the court must extend the time for
service for an appropriate period.
Id.
In this case, Plaintiff failed to effect service of
process within 120 days of filing the complaint, and Plaintiff
failed to meet the Court’s expanded deadline of May 29, 2012.
The Eleventh Circuit has commented that, “Service of process
is a jurisdictional requirement: a court lacks jurisdiction
over the person of a defendant when that defendant has not
been served.” Pardazi v. Cullman Med. Ctr., 896 F.2d 1313,
1317 (11th Cir. 1990).
Upon due consideration, and having given Plaintiff ample
warning, the Court determines that it is appropriate to
dismiss

Murray

and

Smajovits

from

this

action

without

prejudice due to Plaintiff’s failure to perfect service of
process pursuant to Rule 4 of the Federal Rules of Civil
Procedure as to these Defendants.
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
Defendants

John

Murray

and

Abraham

dismissed from this action without prejudice.

2

Smajovits

are

DONE and ORDERED in Chambers, in Tampa, Florida on the
1st day of October 2012.

Copies to: Counsel and Parties of Record

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