Morrison v. Brennan et al

Filing 76

ORDER denying without prejudice 66 Motion for miscellaneous relief, specifically for public notice in lieu of service of process. See Order for details. Signed by Magistrate Judge Anthony E. Porcelli on 7/29/2019. (VIV)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

THOMAS E. MORRISON,
Plaintiff,
v.

Case No. 8:17-cv-2850-T-17AEP

MEGAN J. BRENNAN,
POSTMASTER GENERAL,
et al.,
Defendants.
/
ORDER
This cause is before the Court upon Plaintiff’s Motion for Public Notice in Lieu of
Service of Process (Doc. 66). By the motion, Plaintiff seeks authorization to effectuate
constructive service of process by publication upon two of the Defendants. Plaintiff contends
that he made a good faith effort to effectuate service on defendants Sharon C. Boice and Judith
A. Farrell and must resort to publication to complete service. Specifically, the Plaintiff alleges
that Judith A. Farrell refused to either sign for the summons or answer her door/was not home
when the residence was approached by the U.S. Marshals Office. Id. Further, the Plaintiff
alleges that Sharon C. Boice has retired as of August or September 2016, and Plaintiff has no
knowledge of her current Florida residence. Id.
Under the Federal Rules of Civil Procedure, service of a summons by publication must
be made in accordance with state law. Fed. R. Civ. P. 4. To that effect, the relevant Florida
Statute provides, “[w]here personal service of process or, if appropriate, service of process
under s. 48.194 cannot be had, service of process by publication may be had upon any party.”
Fla. Stat. Ann. § 49.021 (emphasis added). After consideration, it is hereby

ORDERED:
1. Plaintiff’s Motion for Public Notice in Lieu of Service of Process (Doc. 66) is
DENIED WITHOUT PREJUDICE.
2. Plaintiff is directed to attempt to effectuate service again upon the aforementioned
Defendants. If Plaintiff is unable, upon further investigation and good faith efforts
to effectuate service in this manner 1, and provides sufficient evidence of his
inability to serve the Defendants 2, Plaintiff may renew his motion, and the Court
will consider other remedies at that time 3.
3. Plaintiff is further directed to provide a copy of this Order to the U.S. Marshals
Office so that the Order may additionally be served upon the Defendants.
DONE AND ORDERED in Tampa, Florida, on this 29th day of July, 2019.

cc: Counsel of Record
1

For instance, the Plaintiff can attest, through an affidavit, that personal service upon the
aforementioned Defendants “cannot be had” by making efforts to acquire information through
USPS or the DMV, and attempt service at different times during the day. See, e.g., Martins v.
Oaks Master Prop. Owners Ass'n, Inc., 159 So. 3d 142, 146 (Fla. Dist. Ct. App. 2014) (noting
that “the test is not whether it was in fact possible to effect personal service, but whether the
evidence shows that the plaintiff ‘reasonably employed knowledge at his command, made
diligent inquiry, and exerted an honest and conscientious effort appropriate to the
circumstances, to acquire the information necessary to enable him to effect personal service on
the defendant.’”).
2
Plaintiff failed to provide relevant evidence of his inability to serve the Defendants through
the attached Exhibit (Doc. 66-1).
3
Service by publication is customarily a last resort remedy, as such service seldomly results in
actual notice.

2