United States of America v. Ciaravella

Filing 9

ORDER denying 8 Motion for Extension of Time. Signed by Magistrate Judge Amanda Arnold Sansone on 12/1/2017. (DMP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No.: 8:17-cv-1588-T-36AAS

MARK W. CIARAVELLA,
Defendant.
______________________________________/
ORDER
Before the Court is Plaintiff’s Second Motion for Extension of Time. (Doc. 8). Plaintiff
asks the Court to extend the deadline in which Plaintiff must serve Defendant by an additional
sixty days. (Id.). For the reasons set out below, Plaintiff’s Motion is DENIED.
I.

PROCEDURAL HISTORY
On June 30, 2017, Plaintiff United States of America filed a complaint against Defendant

Mark W. Ciaravella seeking to collect outstanding student loan debt. (Doc. 1, p. 2). Pursuant to
Federal Rule of Civil Procedure 4(m), Plaintiff had ninety days to serve Defendant; that is, until
September 28, 2017. On July 3, 2017, the Clerk entered an Order Regulating the Processing of
Civil Recovery Actions, wherein the Clerk advised Plaintiff that if service wasn’t perfected by the
September 28th deadline, then Plaintiff was required to either move for voluntary dismissal of the
case or show cause in writing why the action should not be dismissed for lack of prosecution by
October 3, 2017. (Doc. 3).
Plaintiff failed to perfect service by September 28, 2017. Plaintiff also failed, prior to the
Clerk’s October 3rd deadline, to either move for voluntary dismissal or show cause in writing why

1

the action should not be dismissed for lack of prosecution. On October 25, 2017, despite its
noncompliance with the Federal Rules of Civil Procedures and the Clerk’s order, Plaintiff filed a
Motion for Extension of Time (“First Motion”) in which to serve Defendant. (Doc. 6). Plaintiff
unapologetically filed its First Motion thirty days after its original service deadline and over twenty
days after the deadline in the July 3rd Clerk’s order. While Plaintiff stated in its belated First
Motion that it attempted to serve Defendant at his home address on eight separate occasions, two
of Plaintiff’s attempts occurred weeks after the September 28th service deadline. (Doc. 6, p. 1).
Not only was Plaintiff unapologetic about its unexcused delay in filing its First Motion, but
Plaintiff did not provide the Court with any process server paperwork or affidavits to support its
allegations related to the six timely attempts at service and did not even pay lip service to the good
cause standard for permitting an extension of the expired service deadline. (Doc. 7, p. 2). Despite
these significant shortcomings, the Court reluctantly permitted Plaintiff an additional thirty days
(until November 27, 2017) to perfect service on Defendant. (Id.).
Five days prior to the extended deadline, on November 22, 2017, Plaintiff filed its Second
Motion for Extension of Time (“Second Motion”) to serve Defendant.
II.

ANALYSIS
Rule 4(m) provides that if a plaintiff fails to serve the defendant within ninety days after

the complaint is filed or after a specified time given by the court, the plaintiff must show good
cause as to why an extension of time in which to serve the defendant should be given. Good cause
exists when some outside factor, such as reliance on faulty advice, prevents service of process.
Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991) (discussing good cause in the context of Rule
4(j), which is the previous version of Rule 4(m)) (citation omitted). However, inadvertence or

2

negligence do not constitute good cause. Id. In the absence of good cause, the Court has the
discretion to extend the time for service of process. Horenkamp v. Van Winkle and Co., Inc., 402
F.3d 1129, 1132 (11th Cir. 2005) (citation omitted).
Here, Plaintiff’s Second Motion, much like its First Motion, comes with a number of
irregularities. In the month since the Court’s Order on the First Motion, Plaintiff has not attempted
to perfect service on Defendant at his home and has instead attempted to perfect service on
Defendant at his place of employment twice: once on October 31st (Halloween) and once on
November 21st (Thanksgiving week). (Doc. 8, p. 1). Under the circumstances, a mere two service
attempts during a month-long period for service after failed prior attempts does not strike the Court
as either persistent or diligent. Moreover, under the circumstances, Plaintiff’s decision to wait
three weeks between the two lone service attempts and then to have the last pre-deadline service
attempt at Defendant’s workplace on the Tuesday of Thanksgiving week is also, simply put,
inexcusable. Last, despite the Court pointing out Plaintiff’s failure in its prior Order (Doc. 7, p.
2), Plaintiff once again has not provided the Court with any process server paperwork or affidavits
verifying its service attempts. Ultimately, Plaintiff has nothing to support any claim that Plaintiff
could make that there is good cause for the Court to once again extend Plaintiff’s service deadline.
Tellingly, nowhere in Plaintiff’s Second Motion does Plaintiff muster up the courage to
even argue to the Court that there is good cause for Plaintiff to be granted another extension. There
is no good cause. Plaintiff’s actions in filing its First Motion well after the applicable deadline,
not providing the Court with sufficient documentation to evaluate Plaintiff’s prior unsuccessful
service attempts, and poor judgment in choosing when and how often to attempt service illustrate
a lack of diligence. Thus, the Court finds that this lack of diligence, like inadvertence and

3

negligence, undercuts any colorable claim that there is good cause for an additional extension.
III.

CONCLUSION
For the aforementioned reasons, it is ORDERED that Plaintiff’s Second Motion for

Extension of Time (Doc. 7) is DENIED.
DONE AND ORDERED in Tampa, Florida on this 1st day of December, 2017.

4