Thomas v. Derryberry et al
Filing
26
ORDER: Defendant Al Nienhuis's, Hernando County Sheriff, Motion to Quash Service of Process (Doc. # 16 ) is granted. If Thomas wishes to maintain an action against Nienhuis, he has until May 22, 2017, to properly serve Nienhuis under Rule 4. Signed by Judge Virginia M. Hernandez Covington on 5/12/2017. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DERREL LEONARD THOMAS,
Plaintiff,
v.
Case No. 8:16-cv-3482-T-33AEP
SHANE DERRYBERRY, et al.,
Defendants.
/
ORDER
This matter comes before the Court upon consideration of
Defendant Al Nienhuis’s, Hernando County Sheriff, Motion to
Quash Service of Process (Doc. # 16), filed on May 1, 2017.
Plaintiff Derrel Leonard Thomas, who is proceeding pro se,
filed an “Objection to Quash Service of Process,” which the
Court construes as Thomas’s response in opposition, on May
11, 2017. (Doc. # 19). For the reasons below, Nienhuis’s
Motion is granted.
DISCUSSION
On April 18, 2017, Thomas’s wife delivered a copy of a
summons to the Hernando County Sheriff’s Office. (Doc. # 161 at ¶ 3). However, a copy of the Complaint was not included
with the summons. (Id. at ¶ 4). Nienhuis now seeks an order
from this Court quashing service, that is, an order declaring
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service has not been properly accomplished.
Rule 4 prescribes that “[a] summons must be served with
a copy of the complaint.” Fed. R. Civ. P. 4(c)(1). Anyone who
is at least eighteen years old and a nonparty may serve the
“summons and complaint.” Fed. R. Civ. P. 4(c)(2). When serving
an individual within a judicial district of the United States,
as is the case here, Rule 4 provides for two primary methods
of serving: (1) following the law of the state where the
district court is located, Fed. R. Civ. P. 4(e)(1), or (2) by
one of three means expressly listed, Fed. R. Civ. P. 4(e)(2).
As to the applicable state law under Rule 4(e)(1),
Florida law applies because this Court sits in Tampa, Florida.
Section 48.031, Fla. Stat., prescribes the manner by which
service must be made. In relevant part, section 48.031 states
that service of process is “made by delivering a copy of it
to the person to be served with a copy of the complaint . .
. .” Fla. Stat. § 48.031(1)(a). For its part, Rule 4(e)(2)
allows service to be accomplished by “delivering a copy of
the summons and of the complaint to the individual personally”
or by “delivering a copy of each[, that is, the summons and
the complaint,] to an agent authorized by appointment or by
law
to
receive
service
of
process.”
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Fed.
R.
Civ.
P.
4(e)(2)(A), (C). Thus, under either Florida law or the Federal
Rules of Civil Procedure, in order for service to be properly
made, the summons must be delivered along with a copy of the
complaint.
In this case, the record shows service was not properly
accomplished. Although Thomas himself delivered a copy of an
unexecuted summons along with a copy of the complaint (Doc.
# 19 at 1), doing so was not sufficient because the summons
did not contain the Clerk’s signature as required under Rule
4(a)(1)(F) and a party to the action cannot be the process
server under Rule 4(c)(2). In addition, although Thomas’s
wife, who is a nonparty to this action, delivered a copy of
an executed summons to the Sheriff’s Office, a copy of the
Complaint was not included. (Doc. # 16-1 at ¶ 3). Because a
nonparty has not served Nienhuis with a summons and a copy of
the Complaint as required under Rule 4, service has not been
properly accomplished.
While service has not been properly accomplished as to
Nienhuis, the Court notes that the deadline for serving is
not until May 22, 2017. Therefore, Thomas still has time to
complete service of process as to Nienhuis.
Accordingly, it is
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ORDERED, ADJUDGED, and DECREED:
Defendant Al Nienhuis’s, Hernando County Sheriff, Motion
to Quash Service of Process (Doc. # 16) is granted. If Thomas
wishes to maintain an action against Nienhuis, he has until
May 22, 2017, to properly serve Nienhuis under Rule 4.
DONE and ORDERED in Chambers in Tampa, Florida, this
12th day of May, 2017.
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