Aragon v. School District of Manatee County, Florida

Filing 7

ORDER granting 5 Defendant's Motion to Quash Service of Process. Plaintiff is directed to re-attempt service of process on or before June 4, 2014. Signed by Judge Virginia M. Hernandez Covington on 3/20/2014. (CH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PATRICIA L. ARAGON,
Plaintiff,
v.

Case No. 8:14-cv-274-T-33EAJ

SCHOOL DISTRICT OF MANATEE
COUNTY, FLORIDA,
Defendant.
_____________________________/
ORDER
This cause comes before the Court in consideration of
Defendant School District of Manatee County’s1 Motion to Quash
Service of Process (Doc. # 5), filed on February 26, 2014.
Plaintiff Patricia Aragon filed an affidavit in response to
the Motion on March 13, 2014.

For the reasons that follow,

the Court grants the Motion.
I. Background
On February 4, 2014, Aragon initiated this Title IX
retaliation action against the School District of Manatee

Although Defendant has not filed a motion to correct its
docketed designation in this case as “School District of
Manatee County,” the Court notes that Defendant refers to
itself as the “School Board of Manatee County” in the present
Motion. (Doc. # 5) (emphasis added). The Court will continue
to refer to Defendant as the School District of Manatee County
until this discrepancy is cured by the parties.
1

County with a single-count complaint.

(Doc. # 1).

Stated

succinctly, Aragon, a teacher at Manatee High School, alleges
that the School District retaliated against her for reporting
what she believed to be unlawful sexual harassment of female
high school students by an assistant football coach.

(Id. at

1).
On February 14, 2014, Aragon filed a return of service
executed,

indicating

that

process

server

Kurt

Klein

had

effected service of process upon the School District on
February 5, 2014.

(Doc. # 4).

However, on February 26, 2014,

the School District filed a Motion to Quash Service of process
pursuant to Rule 12(b)(5) of the Federal Rules of Civil
Procedure.

(Doc. # 5).

That Motion argues as follows:

Section 1001.40 of the Florida Statutes
requires that all suits against school boards be
served on the chairman of the school board and if
he or she cannot be found, on the superintendent of
the school board as the executive officer and only
in the absences of both the chairman of the school
board and the superintendent, service may be made
on a general member of the school board.
On February 5, 2014, the Plaintiff served her
complaint on a School Board employee who was not a
person designated pursuant to Fla. Stat. § 1001.40.
. . . The complaint was served without determining
the absence of both the Chairman . . .
and the
Superintendent . . . , either of whom may have been
available to receive the complaint and summons as
required by the . . . statute.
(Id. at 1-2).

2

In support of the Motion, the School District attaches
the Declaration of Kelly Collins, who is employed by the
School District as an “Agency Administrative Associate I.”
(Doc. # 5-1).

Collins avers that she was served with the

summons in this case, but that “[t]he summons was accompanied
by only the first page of the complaint.”

(Id. at 1).

Furthermore, Collins states that “[a]t no time did the process
server inquire in my presence about the availability of the
Chairman or Superintendent of the School Board.”

(Id.).

In response to the Motion, Aragon provides no legal
memorandum of law, as required by the Local Rules of this
Court,2 but instead offers the affidavit of process server
Kurt

Klein.

Klein’s

affidavit

provides

the

following

statement:
On February 5, 2014, at 4:30 pm, I personally served
a Summons & Complaint to the School District of
Manatee County Florida . . . . Upon arrival I was
met with the receptionist on the ground floor. I
informed her I had Summons and Complaint (sic) to
be served to the [S]chool District of Manatee
County. She called someone and explained that I
had a Summons & Complaint to be served.
A few
minutes later a Ms. Kelly Collins came down and
reviewed all the documents and stated that she
“would accept the documents.”
I placed my
“Each party opposing
within fourteen days
application a response
authority in opposition
3.01(b), M.D. Fla.
2

a motion or application shall file
after service of the motion or
that includes a memorandum of legal
to the request . . . .” Local Rule

3

initials, identification number and date on the
Summons and thank[ed] her for her time and left the
property.
(Doc. # 6).
The

Court

has

reviewed

the

Motion

as

well

as

the

affidavits submitted by both parties and is otherwise fully
advised in the premises.
II.

Analysis
“‘[W]hen service of process is challenged, the party on

whose behalf service is made has the burden of establishing
its validity.’”

Andujar v. All Coast Transporters, Inc., No.

12-62091-CIV, 2013 WL 2404059, at *2 (S.D. Fla. May 31, 2013)
(quoting Familia de Boom v. Arosa Mercantil, S.A., 629 F.2d
1134, 1139 (5th Cir. 1980)). In this case, because the School
District claims that Aragon’s service of process was invalid,
Aragon must show that she effected proper service on the
School District.
Rule 4 of the Federal Rules of Civil Procedure provides
for many instances in which service is appropriate when
effected in accordance with applicable state law. See, e.g.,
Fed. R. Civ. P. 4(e)(1) (“[A]n individual . . . may be served
in a judicial district of the United States by . . . following
state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court
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is located . . . .”); Fed. R. Civ. P. 4(j)(2) (“A state,
municipal

corporation,

or

any

other

state-created

governmental organization that is subject to suit must be
served by . . . serving a copy of [the summons and complaint]
in the manner prescribed by that state’s law for serving a
summons or like process on such a defendant.”).
In this case, the School District contends – and Aragon
does

not

contest

–

that

the

procedure

for

service

controlled by Section 1001.40, Florida Statutes.
at

1).

As

summarized

above,

that

statute

is

(Doc. # 5

imposes

the

following guidelines for service:
In all suits against district school boards,
service of process shall be had on the chair of the
district school board or, if he or she cannot be
found, on the district school superintendent as
executive officer of the district school board or,
in the absence of the chair and the district school
superintendent, on another member of the district
school board.
Fla. Stat. § 1001.40.
The affidavit proffered by Aragon fails to refute the
School District’s allegations of defective service.
the affidavit

Indeed,

corroborates the School District’s factual

assertions that “the complaint was served [on Ms. Collins]
without determining the absence of both the Chairman . . .
and the Superintendent . . . , either of whom may have been

5

available to receive the complaint and summons . . . .”
# 5 at 1-2).

(Doc.

Mr. Klein’s affidavit merely states that he

informed a receptionist that he had a summons and complaint
to serve on the School District, and that Mr. Klein left the
documents with Ms. Collins after she accepted them.
6).

(Doc. #

The affidavit contains no information regarding the

availability of the Chairman or Superintendent, and Aragon
has

provided

no

legal

argument

or

authority

otherwise

demonstrating to the Court that service was proper under the
circumstances of this case.
“Upon a showing of insufficient service of process, Fed.
R.

Civ.

P.

12(b)(5)

provides

district

courts

with

the

authority to either dismiss the complaint or to quash the
service and require the plaintiff to re-attempt service of
process.”

Smith v. Conner, No. 8:12-cv-52-T-30AEP, 2013 WL

268685, at *2 (M.D. Fla. Jan. 24, 2013) (quotation omitted).
The Court finds it appropriate at this juncture to grant the
School District’s Motion to Quash Service so that Aragon may
have an opportunity to re-attempt service of process on or
before June 4, 2014, which, in this case, represents the
deadline

for

service

imposed

Procedure 4(m).
Accordingly, it is
6

by

Federal

Rule

of

Civil

ORDERED, ADJUDGED, and DECREED:
(1)

Defendant’s Motion to Quash Service of Process (Doc. #
5) is GRANTED.

(2)

Plaintiff is directed to re-attempt service of process
on or before June 4, 2014.
DONE and ORDERED in Chambers in Tampa, Florida, this

20th day of March, 2014.

Copies: All Counsel of Record

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