Rooney v. Mercedes Benz Financial Services

Filing 15

SECOND ORDER ON PRO SE FILINGS. By November 21, 2023, Plaintiff shall file a notice on the docket clarifying whether Plaintiff has properly effected service in accordance with Michigan law. If service was not adequately perfected under Michigan law, Plaintiff must perfect service of the summons and complaint upon Defendant under Federal Rule of Civil Procedure 4(m) within 90 days after the filing of the complaint: by January 15, 2024. Signed by Judge Beth Bloom on 11/14/2023. See attached document for full details. (rbe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 23-cv-23967-BLOOM/Otazo-Reyes
MICHAEL P. ROONEY,
Plaintiff,
v.
MERCEDES BENZ FINANCIAL
SERVICES,
Defendant.
________________________________/
SECOND ORDER ON PRO SE FILINGS
THIS CAUSE is before the Court upon a sua sponte review of the record. On October 30,
2023, the Court ordered in part that Plaintiff Michael P. Rooney’s Proof of Service, ECF No. [7],
be stricken for failure to comply with the Federal Rules of Civil Procedure and the Court’s Order
Providing Instructions, ECF No. [6]. See ECF No. [11] at 2 (striking Proof of Service in part
because Plaintiff purportedly effected service personally); see also Fed. R. Civ. P. 4(c)(2)
(providing that any person who is at least 18 years old and not a party may serve a summons and
complaint). On November 1, 2023, Plaintiff filed a second Proof of Service and attached a
Domestic Return Receipt indicating that on October 20, 2023, “Gary” signed for correspondence
containing a summons in this action at Mercedes Benz Financial Service, 35555 W Twelve Mile
Rd Ste 100, Farmington, Michigan 48331. A review of the record in this action indicates that
Defendant is a corporation. To date, Defendant’s counsel has not entered an appearance in this
case.
Federal Rule of Civil Procedure 4(h) provides that:
service upon a domestic or foreign corporation that has not waived service, shall be

Case No. 23-cv-23967-BLOOM/Otazo-Reyes
effected: (1) in a judicial district of the United States in the manner prescribed for
individuals by subdivision (e)(1), or by delivering a copy of the summons and of
the complaint to an officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of process and, if the agent
is one authorized by statute to receive service and the statute so requires, by also
mailing a copy to the defendant.
Fed. R. Civ. P. 4(h)(1). Rule 4(e)(1) states in turn that service may be effected by “following state
law for serving a summons in an action brought in courts of general jurisdiction in the state where
the district court is located or where service is made. . . .” Fed. R. Civ. P. 4(e)(1).
The district court is in Florida. In relevant part, Florida Statutes § 48.081 provides that:
(1) Process against any private corporation, domestic or foreign, may be served:
(a) On the president or vice president, or other head of the corporation;
(b) In the absence of any person described in paragraph (a), on the cashier,
treasurer, secretary, or general manager;
(c) In the absence of any person described in paragraph (a) or paragraph (b),
on any director; or
(d) In the absence of any person described in paragraph (a), paragraph (b),
or paragraph (c), on any officer or business agent residing in the state.
(2) If a foreign corporation has none of the foregoing officers or agents in this state,
service may be made on any agent transacting business for it in this state.
Alternatively, service can also be effected on a designated agent under § 48.091. Fla. Stat.
§ 48.081(3).
“For service of process on an agent or employee of a corporation to be effective, the return
of service must show the absence of the statutorily prescribed superior classes of persons who may
be served.” Lantieri v. Mastergas USA, Inc., No. 19-CV-60128, 2019 WL 5260251, at *2 (S.D.
Fla. July 16, 2019) (quoting Garcia v. Airport Book & Video, Inc., No. 07-20210-CIV, 2007 WL
2446870, at *2 (S.D. Fla. Aug. 23, 2007) (citation and quotation omitted), (granting motion to set
aside default judgment where service of process was improper)), report and recommendation
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Case No. 23-cv-23967-BLOOM/Otazo-Reyes
adopted, No. 19-60128-CIV, 2019 WL 5260101 (S.D. Fla. July 31, 2019).
Here, there is no indication that “Gary” is any of the individuals who are authorized to
receive service under the Federal Rules or the Florida Statutes. To the extent “Gary” is an agent or
employee of Defendant, there is no showing of the absence of the statutorily prescribed superior
classes of persons who may be served. Moreover, Plaintiff has not otherwise indicated that he has
effected service properly in accordance with Michigan law.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. By November 21, 2023, Plaintiff shall file a notice on the docket clarifying whether
Plaintiff has properly effected service in accordance with Michigan law. If Plaintiff
fails to file such notice, the Court may impose sanctions, including dismissal of this
action without prejudice and without further notice.
2. If service was not adequately perfected under Michigan law, Plaintiff must perfect
service of the summons and complaint upon Defendant under Federal Rule of Civil
Procedure 4(m) within 90 days after the filing of the complaint: by January 15, 2024.
Otherwise, failure to effectuate service of a summons and the complaint on Defendant
by the stated deadline will result in dismissal without prejudice and without further
notice.
3. The Court again reminds Plaintiff that he is required to comply with the Federal Rules
of Civil Procedure, the Local Rules, and this Court’s Orders. See ECF No. [6]; cf. GJR
Invs., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998) (explaining that,
although courts construe pro se filings liberally, “this leniency does not give a court
license to serve as de facto counsel for a party[.]”) (internal citation omitted), overruled
in part on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11th
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Case No. 23-cv-23967-BLOOM/Otazo-Reyes
Cir. 2010). Failure to do so may also result in dismissal without prejudice and without
further notice.
DONE AND ORDERED in Chambers at Miami, Florida, on November 14, 2023.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

Copies to:
Counsel of Record
Michael P. Rooney
3060 NE 190TH ST
APT 202
Aventura, FL 33180

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