Veltheim v. International Bodytalk Association, Inc. et al
Filing
12
ORDER: Plaintiff Christopher Veltheim's Motion to Reinstate Complaint, for an Enlargement of Time to Perfect Service, for Leave to Serve Defendants by Private Process Server, and for Other Relief (Doc. # 9 ) is GRANTED to the extent that th e Clerk is directed to REOPEN and reinstate this case. The deadline for Plaintiff to effect service of process on Defendants is extended to and including June 15, 2016. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 5/16/2016. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTOPHER VELTHEIM,
Plaintiff,
v.
Case No.
8:16-cv-298-T-33JSS
INTERNATIONAL BODYTALK
ASSOCIATION, INC., ET AL.,
Defendants.
____________________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
Christopher Veltheim’s Motion to Reinstate Complaint, for an
Enlargement of Time to Perfect Service, for Leave to Serve
Defendants by Private Process Server, and for Other Relief
(Doc. # 9), which was filed on May 12, 2016.
The Court grants
the Motion as outlined below.
I.
Background
On February 8, 2016, Christopher Veltheim initiated this
action by filing his Complaint against International Bodytalk
Association, Inc., John Veltheim, and Esther Veltheim. (Doc.
# 1). The Complaint contains the following counts: Involuntary
Dissolution
and
Liquidation
of
International
Bodytalk
Association (Count I); Equitable Accounting and Dissolution of
International Bodytalk Association (Count II); Breach of
Fiduciary Duty (Count III);
Declaratory Relief (Count IV);
Libel, Slander, and Slander Per Se (Count V); and Claim for
Attorney’s Fees. (Count VI).
Recent changes to the Federal Rules of Civil Procedure
significantly
shortened
service of process.
the
period
of
time
allotted
See Rule 4(m), Fed. R. Civ. P.
for
In an
effort to move the case forward and ensure that Plaintiff
effected service in a timely manner, the Court issued an Order
on March 8, 2016, requiring Plaintiff to provide a status
report regarding service of process by March 11, 2016. (Doc.
# 5).
Plaintiff failed to file the status report as required
by the Court’s March 8, 2016, Order.
Accordingly, on March
14, 2016, the Court filed a second Order once again directing
Plaintiff to file the required status report. (Doc. # 6). The
Court commented: “The Court is left to wonder if the plaintiff
still
desires
to
prosecute
this
case.”
(Id.).
However,
Plaintiff did not comply with the Court’s Orders and did not
file the required status report.
On March 18, 2016, with no status report having been
filed by Plaintiff, and with no indication on the docket that
Plaintiff intended to prosecute the action, the Court filed an
Order dismissing the case without prejudice for failure to
prosecute. (Doc. # 7).
Thereafter, On May 12, 2016, Plaintiff filed his Motion
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to Reinstate Complaint, for an Enlargement of Time to Perfect
Service, for Leave to Serve Defendants by Private Process
Server and for Other Relief. (Doc. # 9).
Plaintiff filed a
separate Memorandum in support of the Motion (Doc. # 10) and
a separate affidavit in support of the Motion. (Doc. # 11).
In the Motion, Plaintiff explains that he failed to take
action in this case because the Court’s “emails” were sent to
“an incorrect email address.” (Doc. # 9 at 2).
II.
Discussion
First and foremost, the Court takes this opportunity to
provide some important clarification to counsel. The Court was
surprised by counsel’s reference to “emails” by the Court in
the present Motion and Memorandum. For instance, counsel
remarks: “In fact, Plaintiff’s counsel was not receiving any
of the Court’s emails because they had been directed to an
outdated email address.” (Doc. # 10 at 2). The Court does not
causally send “emails” to counsel on its cases. The “emails”
that counsel refers to in this case are actually Orders.
The
Orders are published on the open record, are not issued on an
ex parte basis, and require strict and immediate compliance by
counsel.
In addition, the Court’s “Administrative Procedures for
Electronic Filing,” which may be accessed on the Court’s
3
website, explain that “All attorneys and pro se litigants must
maintain current information in CM/ECF including name, email
address, telephone number, fax number, and where applicable,
firm name or affiliation.
An E-filer must immediately update
CM/ECF with any change to the E-filer’s contact information.”
See Section II(D).
It appears that Plaintiff’s counsel did not receive the
Orders in this case because he did not provide the Clerk’s
office with up-to-date contact information and because he did
not actively monitor the docket.
However, the Court finds
good cause to reopen and reinstate this action based on the
general policy in favor of trying cases on the merits, rather
than
dismissing
actions
counsel’s neglect.
based
on
procedural
defects
or
In addition, although the deadline to
effect service on Defendants expired on May 11, 2016, the
Court will enlarge the deadline for Plaintiff to effect
service.
Although Plaintiff has filed no less than three
documents relating to the current procedural situation, none
of those documents request an extension of time to effect
service for any specific period of time - for instance, ten
days, thirty days, or any other duration.
Plaintiff
utilizing
a
New
Jersey
With an Australian
attorney
attempting
to
perfect service on two Florida Defendants, the Court is in an
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untenable position when left to guess regarding the length of
the extension requested.
Utilizing its prior experience as a
touchstone, the Court estimates that 30 days, until and
including June 15, 2016, will be sufficient in order to serve
both Defendants. The Court takes note of Plaintiff’s argument
that the case has become protracted based on Defendants’
failure to waive service and Plaintiff’s related request to
impose on Defendants the cost of perfecting service based Rule
4(d)(2), Fed. R. Civ. P.1
The Court declines to impose costs
at this early juncture due to the specific facts presented.
Particularly,
the
record
reflects
that
Plaintiff
is
not
located within the United States (the Complaint states that
Plaintiff resides in Queensland, Australia). (Doc. # 1 at ¶
3).
In addition, the Court finds that the delays in this
case stem from Plaintiff’s failure to monitor the case and
failure
to
provide
the
Court
with
up-to-date
contact
information, rather than from any failure to waive service by
Defendants.
1
Rule 4(d)(2) provides: “Failure to Waive.
If a
defendant located within the United States fails, without good
cause, to sign and return a waiver requested by a plaintiff
located within the United States, the court must impose on the
defendant: (A) the expenses later incurred in making service;
and (B) the reasonable expenses, including attorney’s fees, of
any motion required to collect those service expenses.”
(Emphasis added).
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The Court also refers Plaintiff’s counsel to Local Rule
3.01(a), which states: “In a motion or other application for
an order, the movant shall include a concise statement of the
precise relief requested, a statement of the basis for the
request, and a memorandum of legal authority in support of the
request, all of which the movant shall include in a single
document not more than twenty-five (25) pages.” Local Rule
3.01(a), M.D. Fla. (Emphasis added).
three
filings
to
addressing
the
Here, counsel devoted
same
relief,
inefficient and in violation of the Local Rules.
which
is
Moving
forward, the Court expects counsel to review the Local Rules
of the Middle District of Florida as well as the Federal Rules
of Civil Procedure.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Plaintiff Christopher Veltheim’s Motion to Reinstate
Complaint, for an Enlargement of Time to Perfect Service,
for Leave to Serve Defendants by Private Process Server,
and for Other Relief (Doc. # 9) is GRANTED to the extent
that the Clerk is directed to REOPEN and reinstate this
case.
(2)
The deadline for Plaintiff to effect service of process
on Defendants is extended to and including June 15, 2016.
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DONE and ORDERED in Chambers, in Tampa, Florida, this
16th day of May, 2016.
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