Prosperous v. Todd et al

Filing 102

ORDER: Prosperous shall comply with the requirements of Federal Rule of Civil Procedure 4 by July 27, 2017. Failure to timely serve and file proof thereof by July 27, 2017, may result in dismissal of the action against any non-served Defendant. Signed by Judge Virginia M. Hernandez Covington on 6/22/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALEXANDRA LOVE PROSPEROUS,
Plaintiff,
v.

Case No. 8:17-cv-996-T-33MAP

AGNES MCCABE, et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court sua sponte. After
filing
service

her

Second

were

filed

Amended

Complaint,

purporting

to

several

show

returns

service

had

of

been

effected as to a host of Defendants. The Court takes this
opportunity

to

address

service

of

process

and

otherwise

provide clarity in the record.
Discussion
Prosperous initiated this action against a number of
Defendants on April 28, 2017. (Doc. # 1). The Clerk’s Office
issued summonses as to all Defendants named in the Complaint
the same day. (Doc. ## 2-34). Before any returns of service
were filed or any Defendant appeared, the Court sua sponte
dismissed

the

Complaint

and

granted

Prosperous

leave

to

amend. (Doc. # 36). Thereafter, counsel for The Office of Ken

Burke, The St. Petersburg Police Department, the Honorable
Sherwood Coleman, the Honorable Jack Hellinger, the Honorable
James Pierce, the Honorable Kimberly Todd, and Agnes McCabe,
each of whom were named as Defendants in the Complaint, filed
notices of appearance. (Doc. ## 38-41).
Prosperous timely filed her Amended Complaint on May 16,
2017, and, on the same day, the Clerk’s Office issued another
round of summonses, this time as to all Defendants named in
the

Amended

Complaint.

(Doc.

##

44-77).

Counsel

for

an

additional three Defendants — Directions for Living, Jessica
Long, and Rochelle Noel — filed a notice of appearance on May
18, 2017. (Doc. # 43). The Court dismissed the Amended
Complaint sua sponte on May 22, 2017, but again granted
Prosperous leave to amend. (Doc. # 78).
Prior to filing her Second Amended Complaint, Prosperous
filed a construed Rule 4(c)(3) motion, seeking an order from
the Court compelling the United States Marshal Service to act
as her process server. (Doc. # 79). In her construed Rule
4(c)(3) motion, Prosperous stated she “paid the US marshals
service for delivery of summons . . . and [was then] informed
that [this Court] must grant permission to the US marshals
service to continue to provide delivery service of summons.”

2 

(Id. at ¶ 3). The Court denied the construed Rule 4(c)(3)
motion on May 25, 2017. (Doc. # 84).
The Second Amended Complaint, which, as of this Order,
is the operative complaint, was filed on June 9, 2017. (Doc.
# 85). The Second Amended Complaint lists
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.

Agnes T. McCabe, Assistant State Attorney;
James Obeso, Attorney;
Christina L. Sandvoss, Lawyer;
Janet R. Schaffer, Lawyer;
The Office of Ken Burke, CPA Clerk of Courts;
The City of Saint Petersburg;
Healthy Start Coalition of Pinellas County;
Sally Smith, a pediatrician with Children’s
Medical Services;
Children’s Medical Services Child Protection Teams;
Jame E. Lewis, PhD.;
Jessie Borzelleri, team coordinator at Children’s
Medical Services;
Kate Winkler, case manager at Children’s Medical
Services;
Bridget Herring Daniels, an employee at Children’s
Medical Services;
Rande Rae Reichard, a case manager at Directions
for Living;
Directions for Living;
Rochelle Noel, case manager at Directions for
Living;
Jessica Long, case manager at Directions for
Living;
Eckerd Kids Community Alternatives;
Child Protection Investigation Division;
Cynthia Gibson, a Lieutenant at Child Protection
Investigation Division;
Elaine L. Busher, “CIPD officer”;
Lori Gray, “CIPD officer”;
Cynthia Reed, “CIPD officer”;
Kimali F. Ryan, “CIPD officer”;
Elisabeth Thomas, “CIPD officer”;
Sarah Pierce, supervisor with “CIPD”;
Tracie Moore, supervisor with “CIPD”;

3 

28.
29.
30.

Katie Favara, supervisor with “CIPD”;
Jane Johnson, supervisor with “CIPD”; and
Kathleen “Katie” Kleypas, “CIPD officer”

as Defendants. (Doc. # 85). Each of those 30 Defendants are
being sued in their individual and official capacities. (Id.
at 4). Notably, the Second Amended Complaint no longer names
Judges Todd, Hellinger, Pierce, or Coleman as Defendants.
Compare (Id.), with (Doc. # 44).
Although returns of service were filed on June 15, 2017,
for Judges Coleman, Todd, Hellinger, and Pierce (Doc. ## 87,
91, 94, 97), those Judges are no longer Defendants to this
action as Prosperous did not name them in the Second Amended
Complaint. A return of service was also filed showing that
The St. Petersburg Police Department was served. (Doc. # 98).
However,

as

with

the

Judges,

The

St.

Petersburg

Police

Department was not named as a Defendant in the Second Amended
Complaint.
Returns of service were also filed on June 15, 2017,
showing McCabe, Noel, Long, and Directions for Living were
served. (Doc. ## 88, 92, 93, 95). Counsel for McCabe, Noel,
Long, and Directions for Living have already filed notices of
appearance (Doc. ## 41, 43). Counsel for The Office of Ken
Burke filed a notice of appearance previously as well. (Doc.
# 38). Under Rule 15(a)(3), McCabe, Noel, Long, Directions

4 

for Living, and The Office of Ken Burke have until June 23,
2017, to file a response to the Second Amended Complaint.
Notably, The Office of Ken Burke and McCabe each moved to
dismiss the Second Amended Complaint on June 21, 2017. (Doc.
## 99, 100).
Discounting the previous nine returns of service, only
the returns for Healthy Start Coalition of Pinellas, Janet
Schaffer,

Rande

Rae

Reichard,

and

Eckerd

Kids

Community

Alternatives (Doc. ## 86, 89, 90, 96) remain outstanding. Of
those, the returns of service for Schaffer and Reichard show
that service was not actually effected. (Doc. ## 89, 90).
And, with respect to Healthy Start Coalition and Eckerd Kids
Community Alternatives, a search of Florida’s Department of
State’s online records shows they are Florida not-for-profit
corporations.
Federal Rule of Civil Procedure 4(h) and section 48.081,
Fla. Stat., provide for how service of process is completed
on a corporation. Healthy Start Coalition’s finance manager
accepted service and Eckerd Kids Community Alternatives’
executive director accepted service. (Doc. ## 86, 96). A
corporation may be served by delivering a copy of the summons
and of the complaint to an officer or a managing agent, Fed.
R. Civ. P. 4(h)(1)(B), or by serving any director, Fla. Stat.

5 

§ 48.081(1)(c). While Healthy Start Coalition and Eckerd Kids
Community Alternatives have been served, they have until June
23, 2017, to file a response to the Second Amended Complaint
under

Rule

15(a)(3),

absent

which

the

Court

expects

Prosperous to promptly apply for entry of Clerk’s Default.
Except for Directions for Living, Long, Noel, McCabe,
Healthy Start Coalition, Eckerd Kids Community Alternatives,
and The Office of Ken Burke, there is no evidence in the
record that the other Defendants named in the Second Amended
Complaint have been served. The Court notes, however, that
Prosperous still has until July 27, 2017, to serve those
Defendants

and

file

proof

thereof.

The

Court

highly

recommends, but does not require, that Prosperous utilize the
services of the Legal Information Program offered by the
Federal

Bar

Association,

which

runs

every

Tuesday

from

11:00AM to 12:30PM at the Sam M. Gibbons United States
Courthouse,

801

N.

Florida

Avenue,

Tampa,

FL

33602.

Appointments can be made by calling 813-301-5400.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Prosperous shall comply with the requirements of Federal
Rule of Civil Procedure 4 by July 27, 2017. Failure to timely

6 

serve and file proof thereof by July 27, 2017, may result in
dismissal of the action against any non-served Defendant.
DONE and ORDERED in Chambers in Tampa, Florida, this
22nd day of June, 2017.

7