MB REO-FL Church-2, LLC v. Tampa For Christ Church, Inc. et al

Filing 147

ORDER: Pro se Defendant Frank M. Bafford's "Motion to Dismiss for Violation of Due Process" (Doc. # 135 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 5/16/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MB REO-FL CHURCH-2 LLC,
Plaintiff,
v.

Case No. 8:16-cv-276-T-33AEP

TAMPA FOR CHRIST CHURCH, INC.,
et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
pro se Defendant Frank M. Bafford’s “Motion to Dismiss for
Violation of Due Process” (Doc. # 135). Plaintiff MB Reo-FL
Church-2 LLC timely responded in opposition. (Doc. # 145).
For the reasons below, the motion is denied.
Discussion
MB Reo instituted this action on February 4, 2016. (Doc.
# 1). Defendants Bafford and Tampa for Christ Church, Inc.
were served process on February 22, 2016. (Doc. ## 5, 6). The
process server personally served Bafford at 9622 Theresa
Drive, Thonotosassa, FL 33592. (Doc. # 5). After a prolonged
period of time during which the Court afforded Tampa for
Christ Church several opportunities to retain counsel, Tampa

for Christ Church was defaulted because it failed to retain
counsel. (Doc. ## 17, 29, 36, 39, 43, 66, 74-76, 79, 81, 83,
87, 95, 97, 98, 99). The action continued against Bafford as
the sole defendant.
MB Reo then filed its motion for summary judgment on
September 16, 2016. (Doc. # 107). In response, Bafford moved
to stay the action, attempted to voluntarily dismiss the
action pending against him, and twice moved for an extension
of time to respond to the motion for summary judgment. (Doc.
## 108, 109, 111, 116). The Court denied Bafford’s motion to
stay and noted that Bafford could not use Rule 41 to dismiss
this action. (Doc. # 115). But the Court did grant Bafford
two extensions of time to respond to the motion for summary
judgment, which totaled approximately an extra 30 days. (Doc.
## 113, 117).
When Bafford moved for his second extension of time, he
did so on the grounds that he was missing documents. (Doc. #
116).

Although

the

Court

granted

Bafford’s

request

for

another extension of time, it specifically pointed out that
MB Reo’s counsel certified a copy of the motion for summary
judgment was served by U.S. Mail to Frank Bafford, P.O. Box
119, Thonotosassa, FL 33592 and Tampa for Christ Church, Inc.,
c/o Frank M. Bafford Sr., 9622 Theresa Drive, Thonotosassa,

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FL 33592. (Doc. # 117). Thereafter, counsel for MB Reo
clarified that she served Bafford through four different
means, one of which included mailing documents to Bafford at
the address at which service of proceed was completed: 9622
Theresa Drive Thonotosassa, FL 33592. (Doc. # 118).
Bafford filed his first interlocutory appeal on October
28, 2016. (Doc. # 119). That appeal was sua sponte dismissed
by the Eleventh Circuit on December 22, 2016. (Doc. # 130).
The Court, having been reinvested with jurisdiction over the
instant

case,

entered

an

amended

case

management

and

scheduling order. (Doc. # 132). About a month later, Bafford
moved for another extension of time to respond to the motion
for summary judgment (Doc. # 133), moved to dismiss (Doc. #
135), and took a second interlocutory appeal (Doc. # 136).
The Eleventh Circuit sua sponte dismissed Bafford’s second
interlocutory appeal on April 27, 2017. (Doc. # 141). The
Court, having again regained jurisdiction over the instant
case, directed MB Reo to respond to Bafford’s motion to
dismiss

by

May

12,

2017.

(Doc.

#

142).

MB

Reo

timely

responded. (Doc. # 145).
In his motion to dismiss, Bafford seeks dismissal on the
grounds that he “does not have all the documents pertaining
to this case.” (Doc. # 135 at 1). Bafford further elaborates

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in his motion that Plaintiff sent documents to the wrong
address, his attorney did not provide him documents after the
attorney withdrew, and he is unable to view filings on CM/ECF.
(Id.). Bafford also argues MB Reo violated Rule 37 by failing
to accurately respond to discovery requests. (Id. at 1-2).
To begin, as counsel for MB Reo clarifies, she
serves Mr. Bafford with every paper and pleading
filed in this action in four ways: a) by U.S. Mail
to Mr. Bafford’s home address, 9622 Theresa Drive
Thonotosassa, FL 33592, the address at which he was
served with the Summons and Complaint in this
matter; b) by U.S. Mail to Mr. Bafford’s post office
box, P.O. Box 1192, Thonotosassa, FL 33592, what he
once claimed to be his preferred method of
receiving
documents;
c)
by
email
to
[e-mail], the email address the Mr.
Bafford first used to communicate with undersigned
counsel; and d) by email to [e-mail],
apparently a more recent email through which Mr.
Bafford
recently
began
to
communicate
to
undersigned counsel.
(Doc. # 145 at ¶ 3). In addition, even though Bafford does
not identify the documents his former counsel putatively
failed to turn over, any effect such failure would have had
on Bafford’s ability to defend against this against is blunted
by the fact that Plaintiff sent Bafford “a copy of the docket
and all papers and pleadings it has filed” between May of
2016 and October of 2016. (Doc. # 118 at ¶ 5). Bafford’s
lamentation that he cannot access CM/ECF also rings hollow
given that, after the Court directed him to register for

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CM/ECF (Doc. # 21), he explicitly sought to have the Court
“cancel his access to the CM/ECF,” which request was granted
(Doc. ## 33, 34). Moreover, all public filings are available
through PACER and litigants retain a duty to actively monitor
the docket, Yeschick v. Mineta, 675 F.3d 622, 629-30 (6th
Cir. 2012). Finally, Bafford cannot now seek relief for an
issue

he

admittedly

chose

not

to

bring

to

the

Court’s

attention since the discovery deadline has long ago passed.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Pro se Defendant Frank M. Bafford’s “Motion to Dismiss
for Violation of Due Process” (Doc. # 135) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
16th day of May, 2017.

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