Hives v. Bisk Education, Inc.
Filing
43
ORDER denying 21 --motion to remand; denying 39 --motion for a hearing; adopting in part 35 --report and recommendation; granting 4 --motion to quash; permitting Hives to move by 6/26/2015 for an extension of time to serve Bisk Education. Signed by Judge Steven D. Merryday on 6/17/2015. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TAAJWAR O. HIVES,
Plaintiff,
v.
CASE NO 8:15-cv-262-T-23TBM
BISK EDUCATION, INC.,
Defendant.
____________________________________/
ORDER
In state court, Taajwar O. Hives sued (Doc. 2) Bisk Education, who moved
(Doc. 4) to quash service. Before the state court resolved the motion, Bisk Education
removed (Doc. 1) this action. Hives moves (Doc. 21) to remand for lack of subject
matter jurisdiction. The magistrate judge’s May 7, 2015 report (Doc. 35)
recommends dismissing this action “for failure to properly effect service of process on
the Defendant.”
1. Motion to Remand1
Hives’ motion (Doc. 21) to remand and motion (Doc. 39) for a hearing on the
motion to remand are DENIED. Although Hives argues that this action is “not
1
See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578 (1999) (“We hold that in cases
removed from state court to federal court, as in cases originating in federal court, there is no
unyielding jurisdictional hierarchy. Customarily, a federal court first resolves doubts about its
jurisdiction over the subject matter.”); but see Ballew v. Roundpoint Mortgage Servicing Corp.,
491 Fed. Appx. 25, 26 (11th Cir. 2012) (per curiam) (“The district court did not abuse its discretion
by disposing of the Ballews’ complaint based on the issue of personal jurisdiction. Valid service is a
prerequisite for a federal court to assert personal jurisdiction over a defendant.”).
founded on any compelling federal issue” (Doc. 21 at 2), Count V of the complaint
(Doc. 26) sues under Title VII of the Civil Rights Act. Supplemental jurisdiction
exists over the remaining counts.
2. Motion to Quash Service
Hives attempted service of process before Bisk Education removed this action.
“Federal courts should apply state procedural rules to pre-removal conduct.” Moore’s
Federal Practice, Vol. 16, § 107.31[4] (3d ed. 2014). Under Section 48.081(1), Florida
Statutes:
Process against any private corporation, domestic or foreign, may be
served:
(a) On the president or vice president, or other head of the
corporation;
(b) In the absence of any person described in paragraph (a), on
the cashier, treasurer, secretary, or general manager;
(c) In the absence of any person described in paragraph (a) or
paragraph (b), on any director; or
(d) In the absence of any person described in paragraph (a),
paragraph (b), or paragraph (c), on any officer or business agent
residing in the state.
Further, under Section 48.081(3)(a), “process may be served on the agent designated
by the corporation under s. 48.091.”
Bisk Education argues that “Plaintiff’s attempted service . . . is unarguably
invalid and improper” because “Plaintiff attempted service of process upon
Defendant by serving Defendant’s attorney,” who “is neither the registered agent of
the corporation, employee, president, vice president, or other head of Bisk Education
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Inc.” (Doc. 4 at 2, 4) Hives admits that he attempted to serve counsel for Bisk
Education. Accordingly, the magistrate judge’s report concludes that “this case
[must] be dismissed for failure to properly effect service of process on the
Defendant.” (Doc. 35 at 5) Hives’ objection (Doc. 36) to the report is
OVERRULED, and the report (Doc. 35) is ADOPTED IN PART.2 Bisk
Education’s motion (Doc. 4) to quash service is GRANTED.
Under 28 U.S.C. § 1448, “[i]n all cases removed from any State court to any
district court of the United States . . . in which process served proves to be defective,
such process or service may be completed or new process issued in the same manner
as in cases originally filed in such district court.” Rule 4(m), Federal Rules of Civil
Procedure, allows a plaintiff 120 days after filing the complaint to serve a defendant.
The time to serve Bisk Education expired on May 7, 2015, and no proof of service
appears on the docket.3 Under Rule 4(m):
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.
2
To resolve Bisk Education’s motion to quash service, the report applies Rule 4, Federal
Rules of Civil Procedure, rather than the Florida Statutes. However, Rules 4(h)(1) and 4(e)(1) allows
a plaintiff to serve “following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where service is made.” Thus,
the report applies Section 48.081, Florida Statutes, and correctly concludes that Hives failed to serve
Bisk Education.
3
A February 19, 2015 order (Doc. 7) (1) “advise[s] Plaintiff of the requirements needed to
effectuate service of process” and (2) “warn[s] that failure to follow such requirements would result
in dismissal of her complaint.” (Doc. 35 at 4) Despite the additional time and the warning, Hives
failed to serve Bisk Education.
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Further, under Rule 6(b)(1)(B), “[w]hen an act . . . must be done within a specified
time, the court may, for good cause, extend the time . . . on motion made after the
time has expired if the party failed to act because of excusable neglect.”
No later than JUNE 26, 2015, Hives may move for an extension of time to
serve Bisk Education. Under Rule 4, the motion must “show[] good cause for the
failure” to serve and must account for all 120 days. Also, under Rule 6(b)(1)(B), the
motion must show at least excusable neglect both for Hives’s failure to request an
extension before the expiration of the 120 days and for Hives’s continuing failure to
request an extension. An affidavit or other verified paper must support each factual
allegation; the order granting or denying the motion will disregard any unsworn
factual allegation. If Hives fails to show good cause or fails to demonstrate excusable
neglect, an order will dismiss this action without further notice.
ORDERED in Tampa, Florida, on June 17, 2015.
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