Ganpat v. Aventure Investment Realty, Inc.

• Decision Date: 07 May 2021
• Docket Number: 20-60816-CIV-DIMITROULEAS/SW
• Parties: JUNE GANPAT and RICARDO TONG CHIN, Plaintiffs, v. AVENTURE INVESTMENT REALTY, INC., a Florida Corporation, ANDRES PIGUET, an individual, and MYRON BAILEY, an individual, Defendants.
• Court: U.S. District Court — Southern District of Florida

JUNE GANPAT and RICARDO TONG CHIN, Plaintiffs, v. AVENTURE INVESTMENT REALTY, INC., a Florida Corporation, ANDRES PIGUET, an individual, and MYRON BAILEY, an individual, Defendants.

No. 20-60816-CIV-DIMITROULEAS/SW

United States District Court, S.D. Florida

May 7, 2021

REPORT AND RECOMMENDATION

LURANA S. SNOW, UNITED STATES MAGISTRATE JUDGE.

THIS CAUSE is before the Court on Defendants' Motion to Dismiss the Amended Complaint for Insufficient Service of Process.(ECF No. 53)The Honorable William P. Dimitrouleas referred that portion of the Motion pertaining to service of process to the undersigned for appropriate disposition or Report and Recommendation.^[1](ECF No. 54)

I.PROCEDURAL BACKGROUND

On April 4, 2020, Plaintiffs brought this action against DefendantsAndres Piguet(“Piguet”) and Aventure Investment Realty, Inc.(“Aventure”) for money damages for minimum wage violations, unpaid overtime wages retaliation, and tax fraud pursuant to the Fair Labor Standards Act,29 U.S.C. § 201, et seq., and26 U.S.C. § 7434.^[2] On July 27, 2020, the Court issued an Order to Show Cause for Failure to Comply with Federal Rule of Civil Procedure 4(m) because the record failed to establish that Defendants had been properly served within 90 days after the Complaint was filed.(ECF No. 6)Plaintiffs responded to the Order and requested an additional 75 days to effectuate service.(ECF No. 7at 2)The Court gave Plaintiffs until August 31, 2020, to perfect service.(ECF No. 8)On August 24, 2020, Plaintiff sought another extension of time to properly serve Defendants.(ECF No. 9)In response, the Court extended the deadline to September 18 2020.(ECF No. 11)

Defendants filed Motions to Dismiss for Insufficiency of Service of Process on September 3, 2020, and September 4, 2020(“First Motions to Dismiss”), alleging that Plaintiffs had failed to use diligent efforts to properly serve Defendants and that Plaintiffs had failed to strictly comply with the statutory requirements for effecting substitute service under Fla. Stat. § 48.181.(ECF Nos 20; 23)The Motions were referred to the undersigned and a Report and Recommendation was entered on October 28, 2020(“First R&R”).(ECF No. 34)In the First R&R, this Court recommended that the District Court should find that service of process was insufficient, but that Plaintiffs should be allowed additional time to perfect service.(ECF No. 34at 17)The First R&R was adopted on November 12, 2020, and the deadline to perfect service was extended to January 11, 2021.(ECF No. 39)

Plaintiffs filed their Amended Complaint on November 13, 2020.(ECF No 40)On January 5, 2021, Plaintiffs moved for another extension of time to serve Defendants.(ECF No. 42)The Court granted the extension and the deadline for service was extended to February 8, 2021.(ECF No. 44)

On February 8, 2021, Plaintiffs filed a Notice of Compliance, detailing their attempts at service.(ECF No. 48)On the same day, Defendants filed a Motion for Extension of Time to Respond to Plaintiffs' Amended Complaint.(ECF No. 51)Defendants' Motion was granted and the Court extended the deadline for Defendants to respond to March 1, 2021.(ECF No. 52)

Defendants filed the instant Motion to Dismiss for Insufficient Service of Process pursuant Federal Rule of Civil Procedure 12(b)(5) on March 1, 2021, in which Defendants assert that Piguet and Aventure have yet to be properly served.(ECF No. 53)The Motion is now ripe for review.

II.FACTUAL BACKGROUND

A.Attempts at Service at Issue in the First Motions to Dismiss

This case began in July of 2019 when Plaintiffs served Defendants with a Notice of Intent to Litigate.(ECF No. 55at 2)The parties engaged in pre-suit discussions from July 24, 2019, until February 14, 2020.(ECF No. 55at 2)On February 14, 2020, Defendants' former counsel, Aaron Tandy, informed Plaintiffs' counsel that Defendants did not provide him with authorization to accept service.(ECF No. 55at 2)

Plaintiffs filed their Complaint on April 20, 2020.(ECF No. 1)Plaintiffs attempted to personally serve Defendantsat 2450 Hollywood Boulevard, Suite 200B, Hollywood, FL 33020 (“Suite 200B”) on four different occasions.At these times, Suite 200B was the address registered with the Florida Division of Corporations for Aventure, with Piguet listed as an officer and Simon Naon(“Aventure's registered agent”) listed as the registered agent.(ECFNo. 27-1at 3)Service attempts at Suite 200B were made on: (1)May 11, 2020, at 12:30 p.m.; (2)June 1, 2020, at 9:35 a.m.; (3)June 1, 2020, at 1:35 p.m.; and (4)June 10, 2020, at 12:40 p.m.(ECF No. 7-1)The process server noted during each attempt that the business was closed and that the name on the door was Freedom Financial America.(ECF No. 7-1)There was no sign identifying Aventure or its registered agent.

Plaintiffs' counsel, Ria N. Chattergoon(“Ms. Chattergoon”), filed a declaration with the Court on September 18, 2020.(ECFNo. 27-1)In her Declaration, Ms. Chattergoon affirmed that she had personally visited the Suite 200B address on September 18, 2020, at 11:15 a.m., and witnessed that the company listed there was Elite Management Financial.(ECFNos. 27-1at 2; 25-4 at 3)Aventure's registered agent admitted in his declaration filed with the Court on September 23, 2020, that the office located at Suite 200B was in fact leased to Elite Financial Management.(ECFNo. 29-1)Aventure's registered agent also stated that either he or a family member would stop by Suite 200B on a weekly basis to retrieve mail.(ECFNo. 29-1at 2)Ms. Chattergoon also stated in her Declaration that she spoke with the owner of Elite Management, Shirley Auguste, who indicated that Defendants did not occupy the suite and that she did not work for Aventure.(ECFNo. 27-1at 2)

After being unable to personally serve Defendants, Plaintiffs attempted to effectuate substituted service pursuant to Fla. Stat. § 48.181.On July 24, 2020, Plaintiffs sent correspondence to the Florida Secretary of State requesting that it accept service on behalf of Defendants.(ECF No. 7 at 2)The Secretary of State accepted service on July 30, 2020.(ECFNos. 25-1; 25-2)However, Plaintiff did not receive a Return of Service from the Secretary of State until August 27, 2020.(ECF No. 25at 3)

An affidavit filed by Plaintiffs' courier, Craig White(“White”), states that on August 28, 2020, he delivered a package to Suite 200B containing the Secretary of State's acceptance of service.(ECFNo. 25-4at 1)White also delivered another package to Suite 200B on September 4, 2020, that contained waivers of summonses for both Aventure and Piguet.(ECFNo. 25-4at 2)During both instances, White states that he placed the packages through the mail slot of the door at Suite 200B.(ECFNo. 25-4)Further, White states that Aventure's name was not identified at Suite 200B and no person was present to accept the packages.(ECFNo. 25-4)Plaintiffs' counsel also sent waivers to defense counsel via email and priority mail on September 4, 2020.(ECFNo. 25-5)

In Defendants' First Motions to Dismiss, Defendants primarily argued that Plaintiffs did not strictly comply with the substitute service statutes and that Plaintiffs did not exercise due diligence in attempting substitute service.(ECF Nos. 20; 23)In the First R&R, the undersigned found that Plaintiffs had exercised due diligence in attempting service, noting that circumstances out of Plaintiffs' control, such as the COVID-19 pandemic and Defendants' registered agent's absence from Suite 200B, were at least partially to blame for Plaintiffs' inability to personally serve Defendants.(ECF No. 34at 10-12)However, the undersigned also found that the Plaintiffs had not strictly complied with statutory prerequisites to perfect substitute service because Plaintiffs failed to make the necessary jurisdictional allegations in their Complaint as required by Florida law.(ECF No. 34at 13)Again, the undersigned noted that Plaintiffs' efforts to comply with the substitute service statutes were impeded by Defendants' failure to comply with the registered agent requirements.(ECF No. 34at 13-14)This Court recommended that Defendants' First Motions to Dismiss be denied despite the fact that service of process was insufficient, and that Plaintiff be given additional time to perfect service.(ECF No. 34at 16-17)

The R&R was adopted by the District Court on November 12, 2020, and the deadline to perfect service was extended to January 11, 2021.(ECF No. 39)After the entry of the First R&R on October 28, 2020, Plaintiffs' counsel sent an email to defense counsel again requesting waiver of service.(ECF 66-1at 5)Further, Plaintiffs' counsel sent another email to defense counsel requesting waiver of service on November 12, 2020, after the First R&R was adopted.(ECFNo. 66-1at 4)Defendants' counsel did not accept service on either occasion.

B.The Attempts at Service Currently at Issue

Since the adoption of the First R&R, Plaintiffs have made further attempts to perfect service.Plaintiffs' Amended Complaint was filed on November 13, 2020.(ECF No. 40)Plaintiffs immediately sent the Amended Complaint out for service.(ECF No. 55at 3)

On November 20, 2020, Plaintiffs attempted to serve Defendants on three separate occasions.At 10:58 a.m., Plaintiffs attempted to serve Piguetat 3801 Hollywood Blvd., Suite 200 Hollywood, FL, 33021 (“3801 Hollywood”).(ECFNo. 42-1at 1)Plaintiffs found the 3801 Hollywood address by conducting a “People Map Report, ” and Plaintiffs determined this address to be a possible address for service because the report listed Andre Piquet as the owner.(ECF Nos. 66at 7; 66-1 at 22)At the time of service, the process server noted that this...