Sunscreen Mist Holdings, LLC v. Snappyscreen, Inc., Case No: 2:17-cv-132-FtM-99MRM
| Decision Date | 14 November 2017 |
| Docket Number | Case No: 2:17-cv-132-FtM-99MRM |
| Parties | SUNSCREEN MIST HOLDINGS, LLC, a Michigan limited liability company, Plaintiff, v. SNAPPYSCREEN, INC., Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Pending before the Court is Plaintiff's 2nd Motion for Alternate Service (Doc. 21) filed on September 15, 2017 and Defendant's response thereto (Doc. 22) filed on September 29, 2017. This matter is ripe for review.
In its present motion, Plaintiff once again seeks relief related to service. (Doc. 21 at 1-6). After review of the parties' filings, however, it is clear that Plaintiff did not comply with the Court's prior Order dated August 17, 2017 (Doc. 20). Furthermore, as before, it appears that Plaintiff's inability to serve Defendant is based on a lack of diligence by Plaintiff. At this point, Plaintiff has failed to serve Defendant timely, and the time to do so has long passed. Therefore, for the reasons explained in greater detail below, the Undersigned recommends that Plaintiff's2nd Motion for Alternate Service (Doc. 21) be denied and that this action be dismissed pursuant to Fed. R. Civ. P. 4(m) for Plaintiff's failure to serve Defendant timely.
Plaintiff has had significant trouble effecting service of process on Defendant. In fact, the Motion, sub judice, is Plaintiff's third motion directed at service in this action. (See Docs. 12, 15, 21). In its penultimate motion on this issue, Plaintiff sought an order deeming Defendant served. (Doc. 15 at 6). In the alternative, Plaintiff sought to serve Defendant (1) by sending process to Defendant's attorney by email or (2) via service by publication. (See id. at 4-6). Additionally, Plaintiff asked that the Court allow it to conduct discovery to learn the whereabouts of Defendant's operations and the locations of its employees and principals. (Id. at 6). The Court rejected all of Plaintiff's requests because they were unsupported by authority or because they did not comply with the applicable statutes. (Doc. 20 at 7-10).
Notwithstanding Plaintiff's failures, the Court found that Plaintiff should be allowed additional time to serve Defendant. (Id. at 9). The Court stated that "while the failure to serve Defendant appears to be primarily the result of a lack of diligence by Plaintiff, it is nevertheless clear that Plaintiff has made repeated attempts to serve Defendant and that Plaintiff wishes this action to continue." (Id.). As a result, the Court, in its discretion, extended the time for service, allowing Plaintiff to have thirty (30) days from the date of the Order to effect service of process on Defendant. (Id.). However, the Court warned Plaintiff that failure to serve Defendant within the allotted time may cause the Undersigned to recommend that this action be dismissed pursuant to Fed. R. Civ. P. 4(m) for failure to serve Defendant timely.
In its present Motion, Plaintiff once again seeks to serve Defendant (1) by sending process to Defendant's attorney via email or (2) via service by publication. (Doc. 21 at 4). Plaintiff argues that, despite conducting significant business in Florida, Defendant does not have a registered agent in Florida. (Id. at 1). Additionally, Plaintiff contends that, since the Court's August 17, 2017 Order, it has made six attempts to serve Defendant, but has been unsuccessful. (Id. at 2). As a result, Plaintiff contends that Defendant (Id.).
Defendant, responding by special appearance, argues that Plaintiff's Motion should be denied in its entirety. (Doc. 22 at 9). Specifically, Defendant contends that "[a]lternate service is not warranted as Plaintiff failed to establish the required due diligence or that the Defendant is evading service." (Id.). Additionally, Defendant argues that "Plaintiff failed to establish that service by publication in two Boca Raton papers is proper." (Id.). Furthermore, Defendant argues that "this case should be dismissed for failure to effect service and comply with this Court's Order dated August 17, 2017." (Id.). Finally, Defendant "also requests attorney's fees for Plaintiff [sic] repeated conduct including the same false factual allegations, failure to confer with Defendant prior to filing this motion and submission of a misleading Affidavit of Due Diligence." (Id.).
Fed. R. Civ. P. 4(h) governs service of entities. The Rule states that an entity must be served:
Fed. R. Civ. P. 4(h). Fed. R. Civ. P. 4(e)(1) provides that service may be made 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."
"Service of process is a jurisdictional requirement: a court lacks jurisdiction over the person of a defendant when that defendant has not been served." Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351, 1360 (11th Cir. 2008) (citing Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990)). Moreover, "[a] defendant's actual notice is not sufficient to cure defectively executed service." Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (citations omitted). Plaintiff has the burden of establishing effective service of process. See Zamperla, Inc. v. S.B.F. S.R.L, No. 6:13-cv-1811-Orl-37KRS, 2014 WL 1400641, at *1 (M.D. Fla. Apr. 10, 2014).
A plaintiff is responsible for serving a defendant with a summons and the complaint within the time allowed under Fed. R. Civ. P. 4(m). Lepone-Dempsey v. Carroll Cty. Comm'rs, 476 F.3d 1277, 1280-81 (11th Cir. 2007). The Rule states:
If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
As indicated by the rule, a plaintiff generally must serve a defendant within 90 days. See id. Nevertheless, the Court may extend the time period for service for "good cause." Lepone-Dempsey, 476 F.3d at 1281. The Eleventh Circuit has noted, however, that good cause exists to extend the time for service "only when some outside factor[,] such as reliance on faulty advice, rather than inadvertence or negligence, prevented service." Id. (citing Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991)).
Nonetheless, even absent a showing of good cause, the Court still retains the power, in its discretion, to extend the time for service of process. Id. at 1282 (citing Horenkamp v. Van Winkle And Co., 402 F.3d 1129, 1132-33 (11th Cir. 2005)). In fact, even "when a district court finds that a plaintiff fails to show good cause for failing to effect timely service pursuant to Rule 4(m), the district court must still consider whether any other circumstances warrant an extension of time based on the facts of the case." Id. Such other circumstances include whether the statute of limitations would bar refiled relief or evasion of service by a defendant. Id. (citing Fed. R. Civ. P. 4(m), Advisory Committee Note, 1993 Amendments). The Eleventh Circuit has stated that "[o]nly after considering whether any such factors exist may the district court exercise its discretion and either dismiss the case without prejudice or direct that service be effected within a specified time." Id.
Plaintiff argues that it should be allowed to serve Defendant by an alternate means of service. Specifically, Plaintiff requests that the Court allow it to serve Defendant (1) by sending process to Defendant's attorney by email or (2) via service by publication. (Doc. 21 at 3-4). Upon review, however, the Undersigned finds that Plaintiff has not made an adequate showing that it should be allowed to effect service in either manner.
First, as to Plaintiff's request that the Court allow it to serve Defendant by sending process to Defendant's attorney by email, Plaintiff recycles the exact same argument that the Court rejected in the August 17, 2017 Order. Specifically, as before, Plaintiff argues that it is "in the interest of effective administration of justice" to authorize service by email to Defendant's counsel. (Compare Doc. 15 at 5, with Doc. 21 at 3). Nevertheless, as before, Plaintiff cited no relevant authority for the proposition that the Court may authorize service by email to Defendant's counsel. (Compare Doc. 15 at 4-5, with Doc. 21 at 3). In the absence of any citation to supporting authority, the Undersigned finds that Plaintiff has once again failed to meet its burden of establishing that it is entitled to such relief. See Zamperla, 2014 WL 1400641, at *1. The Undersigned recommends, therefore, that this request be denied.
Likewise, Plaintiff again argues that it should be allowed to serve Defendant by publication. (Compare Doc. 15 at 5-6, with Doc. 21 at 3-4). On this point, the Court previously informed Plaintiff in the August 17, 2017 Order that it had not even minimally complied with the Florida statutes allowing service by publication....
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