Kennedy v. Grova et al

Filing 56

ORDER denying 51 Motion to Quash; denying 51 Motion to Dismiss. Defendant Steve M. Grova shall respond to 41 Amended Complaint by no later than 4/30/2012. Signed by Judge James I. Cohn on 4/19/2012. (awe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-61354-CIV-COHN/SELTZER
PATRICIA L. KENNEDY,
Plaintiff,
v.
STEVE M. GROVA and
ARLENE C. GROVA,
Defendants.
_____________________________/
ORDER DENYING MOTION TO QUASH SERVICE AND MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Steve M. Grova’s Motion to
Quash Service of Process of Amended Complaint on Steve M. Grova and Motion to
Dismiss the Action as to Steve M. Grova [DE 51] (“Motion”). The Court has considered
the Motion, the Memorandum of Law in Support of the Motion [DE 51-1 at 1-10]
(“Memorandum”), Plaintiff Patricia L. Kennedy’s Response [DE 54], the applicable parts
of the record in this case, and is otherwise fully advised in the premises.1
I. BACKGROUND
On June 15, 2011, Plaintiff Patricia L. Kennedy filed this action against
Defendants Steve M. Grova and Arlene C. Grova. See Complaint [DE 1]. Plaintiff
purportedly served both Defendants on August 12, 2011 [DE’s 10, 11]. When neither
Defendant responded to the Complaint, Plaintiff obtained a Clerk’s default [DE 14]
against both of them on October 21, 2011.
Shortly thereafter, on November 18, 2011, Mr. Grova filed a Motion to Quash
Service of Process and Vacate Clerk’s Default Against Steve M. Grova [DE 19], and
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Mr. Grova has not filed a Reply, and the time for doing so has passed.

Mrs. Grova filed a Motion to Set Aside Clerk’s Default Against Arlene Grova and to
Grant Extension of Time for Her to File Response to Complaint [DE 21]. The Court
granted both motions on December 9, 2011, vacating the Clerk’s default as to both
Defendants, quashing service as to Mr. Grova, and providing an extension of time for
Mrs. Grova to respond to the Complaint. See Order Quashing Service of Process and
Vacating Clerk’s Default Against Steve Grova [DE 30]; Order Vacating Clerk’s Default
Against Arlene Grova and Granting Extension of Time to Respond to Complaint
[DE 29]. Mrs. Grova then filed a Motion to Dismiss the Complaint [DE 34], which the
Court granted in part on January 19, 2012 [DE 40].
The next day, Plaintiff filed the currently operative Amended Complaint [DE 41].
Once again, Plaintiff named as Defendants both Mr. Grova and Mrs. Grova. Id. In the
instant Motion, Mr. Grova seeks to quash service of process of the Amended Complaint
and to dismiss the entire action as against him. See Mot. at 1.
II. DISCUSSION
Mr. Grova argues that the Court should quash service of process against him
because service was defective. See Mem. at 1-5. He also asserts that the entire action
against him should be dismissed, because service was not perfected within 120 days of
the filing of the original Complaint. See id. at 6. For the reasons discussed below, the
Court will deny Mr. Grova’s Motion and require him to respond to the Amended
Complaint.
A. Motion to Quash Service of Process
Mr. Grova contends that service was improper because (1) the Return of Service
only mentions service of the summons, not the Amended Complaint, and (2) Mr. Grova
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was not “individually served.” Mem. at 2. In support, Mr. Grova points to the original
Return of Service [DE 47], in which John A. Torres of Tony Tamayo & Associates
affirmed, “on the 29th day of February 2012 at 7:55 p.m., I: Individually Served the
within named person [Mr. Grova] with a true copy of this SUMMONS IN A CIVIL
ACTION with the date and hour endorsed thereon by me, pursuant to Florida State
Statutes 48.031 or state statute as applicable.” Return of Service at 1. Mr. Grova also
submits the Affidavit of Steve M. Grova [DE 15-1 at 7-8] and the Affidavit of his wife,
Jacqueline D. Grova [DE 15-1 at 9-10], in which both affiants swear that they were
never served. See Affidavit of Steve M. Grova ¶ 2; Affidavit of Jacqueline D. Grova ¶ 2.
“Once the sufficiency of service is brought into question, the plaintiff has the
burden [to prove] proper service of process.” Cornwall v. Miami-Dade County Corr. &
Rehab. Dept., No. 10-23561-CIV, 2011 WL 3878352, at *2 (S.D. Fla. Aug. 31, 2011)
(citing Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F. Supp. 2d 1273, 1277 (S.D. Fla.
1999)). “If a plaintiff makes a prima facie showing of proper service, the burden shifts
back to the defendant to bring strong and convincing evidence of insufficient process.”
Hollander v. Wolf, No. 09-80587-CIV, 2009 WL 3336012, at *3 (S.D. Fla. Oct. 14,
2009). “The Court may look to affidavits, depositions, and oral testimony to resolve
disputed questions of fact.” Id.
First, the contention that service was improper because the Return of Service did
not mention the Amended Complaint is now moot due to the filing of the Amended
Return of Service [DE 55], in which Mr. Torres affirmed that he served Mr. Grova “with a
true copy of this SUMMONS IN A CIVIL ACTION AND AMENDED COMPLAINT.”
Amended Return of Service at 1 (emphasis added). Florida law provides that a return
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of service “is amendable to state the facts . . . at any time on application to the court
from which the process issued. On amendment, service is as effective as if the return
had originally stated the omitted facts . . . .” Fla. Stat. § 48.21(2). Additionally, in the
Affidavit of John Torres [DE 54-1], Mr. Torres swears that, at the time of service, he
“informed Mr. Grova . . . that he was being served with a summons and the amended
complaint,” id. ¶ 10, and “affixed the summons and amended complaint to the front
door of the residence,” id. ¶ 11, but “[i]n preparing the return of service on Mr. Grova,
[Mr. Torres] inadvertently failed to list the amended complaint as being in the papers
which had been served on him,” id. ¶ 12. As such, the Court accepts the Amended
Return of Service, which is effective as if the original Return of Service had included
mention of the Amended Complaint. See Fla. Stat. § 48.21(2). Therefore, Mr. Grova’s
argument regarding the Return of Service’s failure to mention the Amended Complaint
is now moot.
Second, the argument that service was improper because Mr. Grova was not
“individually served” also fails. Under Florida law, service is proper if a party being
served attempts to avoid service, and the process server “leaves the papers at a place
from which such person can easily retrieve them and takes reasonable steps to call
such delivery to the attention of the person to be served.” Olin Corp. v. Haney, 245 So.
2d 669, 670-71 (Fla. Dist. Ct. App. 1971). The Affidavit of John Torres establishes the
following facts: Upon knocking on Mr. Grova’s front door, Mr. Torres heard a dog bark
inside the residence, Affidavit of John Torres ¶ 5; He asked for Steve M. Grova, and a
man inside the house advised that he was Steve Grova, id. ¶ 6; Mr. Torres stated that
he was an Officer of the Court with Broward County, id. ¶ 7, and he heard Mr. Grova tell
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a woman inside that a process server was at the door, id. ¶ 8; When Mr. Grova refused
to open the door, Mr. Torres informed him that he was being served in this lawsuit with
a Summons and the Amended Complaint, and affixed the documents to the front door
of the residence, id. ¶¶ 9-11. The Affidavits of Steve M. Grova Jacqueline D. Grova
confirm that a person knocked on the Grovas’ front door on the evening of February 29,
2012, and that Mr. Grova did not open the door. Affidavit of Steve M. Grova ¶ 3;
Affidavit of Jacqueline D. Grova ¶ 3. Although neither Mr. Grova nor his wife recalls Mr.
Torres identifying him self by name or explaining why he was there, they both
remember that the knock triggered “an outburst of loud barking by [their 120-pound
dog],” and Mr. Grova noted that during his communications with the man at the door, he
“struggled to restrain and calm the dog,” Affidavit of Steve M. Grova ¶¶ 3, 4; Affidavit of
Jacqueline D. Grova ¶¶ 3, 4. Also, Mr. Grova’s Motion acknowledges that “it is logical
to assume that the individual who knocked on Steve Grova’s door the same night
service is reported as having been made was, in fact, process server John A. Torres,”
Mem. at 5. Finally, although Mr. Grova and his wife assert that neither of them was
personally served, Affidavit of Steve M. Grova ¶ 2; Affidavit of Jacqueline D. Grova ¶ 2;
Mem. at 5, both affidavits are silent as to whether the Summons and Amended
Complaint were readily accessible on the front door of their residence, as Mr. Torres
claimed them to be. Mr. Grova had an opportunity to submit evidence refuting Mr.
Torres’s testimony by filing a Reply, but he failed to do so.
Together, the affidavits on file show that Mr. Grova attempted to avoid service by
refusing to open his door, and Mr. Torres notified Mr. Grova that he was being served
and left the papers, both the Summons and Amended Complaint, on Mr. Grova’s front
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door, a place where Mr. Grova could readily access them. Therefore, service was
proper under Florida law. See Olin Corp., 245 So. 2d at 670-71; see also S.E.C. v.
Reinhard, 352 Fed. App’x 309, 313 (11th Cir. 2009) (“Where, as here, the person to be
served answers the door and then retreats into his residence, only to find the service
papers at his door at a later date, process is deemed sufficient under Florida law.”);
Palamara v. World Class Yachts, Inc., 824 So. 2d 194, 194-95 (Fla. Dist. Ct. App. 2002)
(evidence sufficient to support proper service where “appellant ran inside and would not
come out[ and] testimony showed that appellant was informed of the contents of the
notice, that the notice was placed on the door through which appellant later came out,
and that the appellant had picked the papers up.”); Liberman v. Commercial Nat’l Bank
of Broward Cnty., 256 So. 2d 63, 63-64 (Fla. Dist. Ct. App. 1971) (service was proper
where appellant “sought to avoid service of process by the expedient of running into his
house and closing the door upon seeing the process server approach, [and t]he
process server (a deputy sheriff) testified that, being thus frustrated by [appellant’s]
conduct, he then left the copy of process and suit papers in the mail box, [and s]hortly
thereafter, he observed [appellant] come out of the house, go to the mail box, remove
the papers therefrom, and return to the house.”). Accordingly, the request to quash
service will be denied.
B. Motion to Dismiss
Mr. Grova next argues that this entire action should be dismissed as against him
for Plaintiff’s failure to serve him within the time limit imposed by the Federal Rules of
Civil Procedure. Mem. at 6. Rule 4(m) provides that “[i]f a defendant is not served
within 120 days after the complaint is filed, the court—on motion or on its own after
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notice to the plaintiff—must dismiss the action without prejudice against that defendant
or order that service be made within a specified time.” Fed. R. Civ. P. 4(m).
As Mr. Grova points out, the original Complaint was filed on June 15, 2011, but
service was not complete until February 29, 2012, well over 120 days later. See Mem.
at 6; Compl.; Amended Return of Service. Plaintiff responds that she served Mr. Grova
with the Amended Complaint within 120 days after the Amended Complaint was served
and the accompanying Summons was issued. Resp. at 3; see also Amended
Complaint (filed on January 20, 2012); Summons (issued on February 17, 2012).
However, “the 120-day period provided by Rule 4(m) is not restarted by the filing of an
amended complaint except as to those defendants newly added in the amended
complaint.” Bolden v. City of Topeka, Kan., 441 F.3d 1129, 1148 (10th Cir. 2006)
(citing Carmona v. Ross, 376 F.3d 829 (8th Cir. 2004), 4B Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1137, at 377 (3d ed.2002), and 1 James
Wm. Moore et al., Moore's Federal Practice § 4.80 (3d ed.1997)); see also Lindley v.
City of Birmingham, Ala., 452 Fed. App’x 878, 880 (11th Cir. 2011) (restarting the 120day time limit with the filing of an amended complaint only because the amended
complaint named a new defendant). “This construction of the rule prevents the plaintiff
from repeatedly filing amended complaints ‘to extend the time for service indefinitely.’”
Bolden, 441 F.3d at 1148 (quoting Del Raine v. Carlson, 826 F.2d 698, 705 (7th Cir.
1987)). Mr. Grova was not newly added in the Amended Complaint, so the 120-day
period to serve him did not restart with the filing of the Amended Complaint. See id.
Nonetheless, Rule 4(m) also provides that “if the plaintiff shows good cause for
the failure [to serve a defendant within 120 days], the court must extend the time for
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service for an appropriate period.” Fed. R. Civ. P. 4(m). Based on the fact that Plaintiff
initially attempted to serve Mr. Grova with the original Complaint within the 120-day time
limit and did not delay in serving him with the Amended Complaint, the Court finds good
cause for an extension of time under Rule 4(m). Mr. Grova’s Co-Defendant, Mrs.
Grova, only filed her Answer [DE 48] to the Amended Complaint last month, the
discovery period has not yet closed, see Scheduling Order [DE 37], and trial remains
over three months away, see id. Therefore, the Court finds it appropriate to extend the
time for service until February 29, 2012, the date on which Mr. Grova was served.
Accordingly, the request to dismiss this action against Mr. Grova for failure to serve him
within the time limit provided by the Federal Rules of Civil Procedure will be denied.
IV. CONCLUSION
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that Defendant Steve M. Grova’s Motion to Quash
Service of Process of Amended Complaint on Steve M. Grova and Motion to Dismiss
the Action as to Steve M. Grova [DE 51] is DENIED. Defendant Steve M. Grova shall
respond to the Amended Complaint [DE 41] by no later than April 30, 2012.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 19th day of April, 2012.

Copies provided to:
Counsel of record via CM/ECF

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