Barr v. One Touch Direct, LLC et al
Filing
100
ORDER: Barr has until and including June 27, 2016, to effect service of process as to Mole and file proof thereof. Signed by Judge Virginia M. Hernandez Covington on 6/1/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALFRED BARR,
Plaintiff,
v.
Case No. 8:15-cv-2391-T-33MAP
ONE TOUCH DIRECT, LLC, et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court sua sponte. On April
22, 2016, the Court entered an Order on Defendants Joseph
Mole and Christopher Reed’s Motion to Dismiss. (Doc. # 78).
In its April 22, 2016, Order the Court found that Plaintiff
Alfred Barr, who is proceeding pro se and in forma pauperis,
had not properly served Mole and Reed. (Id. at 10-11). The
Court permitted Barr another opportunity to properly effect
service of process as to Mole and Reed. (Id. at 11-12). And,
upon Barr’s motion, granted an extension of time for Barr to
effect service of process; Barr had until May 31, 2016, to
effect service of process, file proof thereof, and file a
third amended complaint. (Doc. ## 81-82).
On May 31, 2016, Barr filed his Third Amended Complaint,
which does not assert any cause of action against Reed. (Doc.
1
# 93). However, Barr has not filed proof of service as to
Mole, nor has Barr filed a motion for extension of time to
properly effect service as to Mole.
The Court recognizes that in his Motion for Extension of
Time to Respond to All Four Defendants’ Discovery, filed on
May 31, 2016 (the deadline for filing proof of service as to
Mole), Barr included a footnote indicating Mole has not been
served. (Doc. # 96 at 1 n.1). Barr further indicates that
service is pending by the United States Marshal. (Id.). In
this footnote, Barr also asserts the Court has not ruled on
a portion of his Motion for Extension of Time (Doc. # 81).
(Doc. # 96 at 1 n.1). The Court disagrees. The Motion for
Extension of Time was explicit in the relief it sought—viz.,
“an extension to at least May 31, 2016, to comply with both
service on defendants’ [sic] Mole and Reed, and to file a
third amended complaint.” (Id.) (emphasis in original). The
Court granted Barr’s request in full. (Doc. # 82) (granting
Barr until May 31, 2016, to effect service of process as to
Mole and Reed, file proof thereof, and file a third amended
complaint).
Because Barr is proceeding in forma pauperis, the Court
will afford him one final opportunity to properly effect
service of process in accordance with the Federal Rules of
2
Civil Procedure. Federal Rule of Civil Procedure 4(e) governs
service of process on an individual within a judicial district
of the United States and prescribes,
[u]nless federal law provides otherwise, an
individual--other than a minor, an incompetent
person, or a person whose waiver has been filed-may be served in a judicial district of the United
States by:
(1) 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; or
(2) doing any of the following:
(A) delivering a copy of the summons and
of the complaint to the individual
personally;
(B) leaving a copy of each at the
individual’s dwelling or usual place of
abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent
authorized by appointment or by law to
receive service of process.
Fed. R. Civ. P. 4(e).
In turn, Florida law provides,
[s]ervice of original process is made by delivering
a copy of it to the person to be served with a copy
of the complaint, petition, or other initial
pleading or paper or by leaving the copies at his
or her usual place of abode with any person residing
therein who is 15 years of age or older and
informing the person of their contents.
Fla. Stat. § 48.031(1)(a). Simply leaving process with a coworker does not suffice. Anthony v. Gary J. Rotella & Assocs.
P.A., 906 So. 2d 1205, 1206-08 (Fla. 4th DCA 2005). There are
3
prescribed
methods
of
substitute
service,
however.
“Substitute service may be made on the spouse of the person
to be served at any place in the county,” if the cause of
action is not an adversary proceeding between the spouses,
and “on an individual doing business as a sole proprietorship
at his or her place of business, during regular business
hours, by serving the person in charge of the business at the
time of service if two attempts to serve the owner have been
made at the place of business.” Fla. Stat. §§ 48.031(2)(a)(b).
Service by publication is also allowed for under Florida
law, but only where personal service of process cannot be
had. Fla. Stat. §§ 49.011-49.021; Redfield Invs., A.V.V. v.
Village of Pincrest, 990 So. 2d 1135, 1140 (Fla. 3d DCA 2008)
(noting
“constructive
service
by
publication
may
not
be
utilized where personal service can be had”). Additionally,
service
by
publication
is
limited
to
certain
enumerated
actions and a sworn statement is required as a condition
precedent to service by publication. Fla. Stat. §§ 49.011,
49.031,
49.041.
publication
“must
A
plaintiff
strictly
attempting
comply
with
to
serve
the
statutory
requirements.” Redfield Invs., 990 So. 2d at 1138.
4
by
The
Court
facilitate
provides
the
demonstrated,
timely
there
the
foregoing
resolution
are
several
of
in
an
this
different
effort
to
action.
As
avenues
for
effecting service of process. The Court will provide Barr an
additional
opportunity
to
effect
service
of
process
in
conformity with the applicable rules, and file proof thereof.
Thus, Barr has until and including June 27, 2016, to effect
service of process as to Mole and file proof thereof. Failure
to do so may result in dismissal of all causes of action
brought against Mole.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Barr has until and including June 27, 2016, to effect
service of process as to Mole and file proof thereof.
DONE and ORDERED in Chambers in Tampa, Florida, this 1st
day of June, 2016.
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?