Schwindt v. Hernando County Animal Control

Filing 20

ORDER denying 12 motion to dismiss; granting 18 Motion to Quash; denying without prejudice 18 motion to dismiss; denying as moot 2 Motion to Quash. Plaintiff is directed to obtain service on Defendant within twenty days. Signed by Judge Elizabeth A. Kovachevich on 1/24/2014. (JM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SHAR SCHWINDT,
Plaintiff,
v.

CASE NO. 8:13-CV-809-T-17EAJ

HERNANDO COUNTY,
Defendant.
______________________/

ORDER
This cause is before the Court on:

Dkt. 2
Dkt. 12
Dkt. 18

Motion to Quash Service
Motion to Dismiss for Failure to Comply With Orders
Motion to Quash Service; Motion to Dismiss

Defendant Hernando County removed this case on the basis of federal question
jurisdiction. Prior to removal, Defendant Hernando County, appearing specially,
moved to quash service of process, noting the correct procedure pursuant to Fla. Stat.
Sec. 48.111. With leave of Court (Dkt. 16), Plaintiff Schwindt filed an Amended
Complaint. Defendant Hernando County renewed Defendant’s Motion to Quash
Service, and, in the alternative, asserted Defendant’s Motion to Dismiss, requesting
dismissal of the Amended Complaint for failure to include specific facts supporting the
claims, and because the Amended Complaint is confusing, ambiguous and vague.
Defendant contends Amended Complaint does not provide Defendant with proper
notice of the claim being asserted,

Case No. 8:13-CV-809-T-17EAJ
I. Dkt. 18 Renewed Motion to Quash Service

Defendant argues that Plaintiff attempted to serve Defendant by hand delivery of
the Complaint, without a summons or exhibits, to a paralegal of the County Attorney.
Defendant further argues that Florida Rule of Civil Procedure 1.070 mandates that a
summons be issued and requires Plaintiff to ensure service by an Officer authorized by
law to serve process. Defendant Hernando County, a county government, must be
served as provided on Fla. Stat. Sec. 48.111, by service on the chair of the County
Commission, or, in his absence, the Vice-Chair of the County Commission, or in the
absence of either, on any member of the Board of County Commissioners.

Without valid service of process, the Court does not have personal jurisdiction
over Defendant Hernando County, and this case cannot proceed. After consideration,
the Court grants Defendant’s Renewed Motion to Quash Service. The Court directs
Plaintiff to serve Defendant Hernando County with process within twenty days of the
date of this Order. Plaintiff shall obtain summonses from the Clerk of the Court, and
obtain service of process on Defendant pursuant to Fed. R. Civ. P. 4. Valid service
includes providing a copy of the amended complaint with all its exhibits for service with
the summons. Failure to comply may result in dismissal of this case.

Because the Court has granted the Motion to Quash Service, the Court denies
the alternative Motion to Dismiss without prejudice. However, the Court reminds
Plaintiff Schwindt that Plaintiff is subject to the Federal Rules of Civil Procedure and the
Local Rules of the Middle District of Florida (available on the Court’s website, www.
flmd.uscourts.gov.). The Court draws Plaintiff’s attention to Fed. R. Civ. P. 8(a) and
10(b).

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Case No. 8:13-CV-809-T-17EAJ
II. Dkt. 2 Verified Motion to Quash Service

Because the Court has granted the Renewed Motion to Quash Service, the Court
denies Defendant’s Verified Motion to Quash Service as moot.

III. Dkt. 12 Motion to Dismiss for Failure to Comply with Orders

Defendant moves to dismiss the Complaint due to Plaintiff’s failure to respond to
the Court’s Order directing Plaintiff to respond to pending motions (Dkt. 10). While
Plaintiff did not respond to the Court’s Order or the pending motions, Plaintiff later
moved to reopen this case, after which the Court granted leave to Plaintiff to file an
amended complaint. Plaintiff Schwindt did file an Amended Complaint, signaling
Plaintiff’s intent to proceed in compliance with the Court’s Orders and the Federal Rules
of Civil Procedure. The Court does require pro se parties to comply with procedural
rules. In general, it would not be appropriate to dismiss a case for failure to comply
with Court Orders unless there was a pattern of repeated failure.

After consideration, the Court denies Defendant’s Motion to Dismiss For Failure
to Comply with Orders.

Accordingly, it is

ORDERED that Defendant’s Renewed Motion to Quash Service (Dkt. 18) is
granted. Plaintiff shall obtain service of process on Defendant within twenty days of the
date of this Order. Defendant’s Motion to Dismiss (Dkt. 18) is denied without
prejudice. Defendant’s Verified Motion to Quash is denied as moot. Defendant’s
Motion to Dismiss For Failure to Comply with Court Orders is denied.

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Case No. 8:13-CV-809-T-17EAJ
DONE and ORDERED in Chambers, in Tampa, Florida on this
24th day of January, 2014.

Copies to:
All parties and counsel of record

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