United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
matter comes before the Court upon consideration of pro se
Defendant Frank M. Bafford's “Motion to Dismiss for
Violation of Due Process” (Doc. # 135). Plaintiff MB
Reo-FL Church-2 LLC timely responded in opposition. (Doc. #
145). For the reasons below, the motion is denied.
instituted this action on February 4, 2016. (Doc. # 1).
Defendants Bafford and Tampa for Christ Church, Inc. were
served process on February 22, 2016. (Doc. ## 5, 6). The
process server personally served Bafford at 9622 Theresa
Drive, Thonotosassa, FL 33592. (Doc. # 5). After a prolonged
period of time during which the Court afforded Tampa for
Christ Church several opportunities to retain counsel, Tampa
for Christ Church was defaulted because it failed to retain
counsel. (Doc. ## 17, 29, 36, 39, 43, 66, 74-76, 79, 81, 83,
87, 95, 97, 98, 99). The action continued against Bafford as
the sole defendant.
then filed its motion for summary judgment on September 16,
2016. (Doc. # 107). In response, Bafford moved to stay the
action, attempted to voluntarily dismiss the action pending
against him, and twice moved for an extension of time to
respond to the motion for summary judgment. (Doc. ## 108,
109, 111, 116). The Court denied Bafford's motion to stay
and noted that Bafford could not use Rule 41 to dismiss this
action. (Doc. # 115). But the Court did grant Bafford two
extensions of time to respond to the motion for summary
judgment, which totaled approximately an extra 30 days. (Doc.
## 113, 117).
Bafford moved for his second extension of time, he did so on
the grounds that he was missing documents. (Doc. # 116).
Although the Court granted Bafford's request for another
extension of time, it specifically pointed out that MB
Reo's counsel certified a copy of the motion for summary
judgment was served by U.S. Mail to Frank Bafford, P.O. Box
119, Thonotosassa, FL 33592 and Tampa for Christ Church,
Inc., c/o Frank M. Bafford Sr., 9622 Theresa Drive,
Thonotosassa, FL 33592. (Doc. # 117). Thereafter, counsel for
MB Reo clarified that she served Bafford through four
different means, one of which included mailing documents to
Bafford at the address at which service of proceed was
completed: 9622 Theresa Drive Thonotosassa, FL 33592. (Doc. #
filed his first interlocutory appeal on October 28, 2016.
(Doc. # 119). That appeal was sua sponte dismissed by the
Eleventh Circuit on December 22, 2016. (Doc. # 130). The
Court, having been reinvested with jurisdiction over the
instant case, entered an amended case management and
scheduling order. (Doc. # 132). About a month later, Bafford
moved for another extension of time to respond to the motion
for summary judgment (Doc. # 133), moved to dismiss (Doc. #
135), and took a second interlocutory appeal (Doc. # 136).
The Eleventh Circuit sua sponte dismissed Bafford's
second interlocutory appeal on April 27, 2017. (Doc. # 141).
The Court, having again regained jurisdiction over the
instant case, directed MB Reo to respond to Bafford's
motion to dismiss by May 12, 2017. (Doc. # 142). MB Reo
timely responded. (Doc. # 145).
motion to dismiss, Bafford seeks dismissal on the grounds
that he “does not have all the documents pertaining to
this case.” (Doc. # 135 at 1). Bafford further
elaborates in his motion that Plaintiff sent documents to the
wrong address, his attorney did not provide him documents
after the attorney withdrew, and he is unable to view filings
on CM/ECF. (Id.). Bafford also argues MB Reo
violated Rule 37 by failing to accurately respond to
discovery requests. (Id. at 1-2).
begin, as counsel for MB Reo clarifies, she
serves Mr. Bafford with every paper and pleading filed in
this action in four ways: a) by U.S. Mail to Mr.
Bafford's home address, 9622 Theresa Drive Thonotosassa,
FL 33592, the address at which he was served with the Summons
and Complaint in this matter; b) by U.S. Mail to Mr.
Bafford's post office box, P.O. Box 1192, Thonotosassa,
FL 33592, what he once claimed to be his preferred method of
receiving documents; c) by email to
email@example.com, the email address the Mr.
Bafford first used to communicate with undersigned counsel;
and d) by email to firstname.lastname@example.org, apparently a
more recent email through which Mr. Bafford recently began to
communicate to undersigned counsel.
(Doc. # 145 at ¶ 3). In addition, even though Bafford
does not identify the documents his former counsel putatively
failed to turn over, any effect such failure would have had
on Bafford's ability to defend against this against is
blunted by the fact that Plaintiff sent Bafford “a copy
of the docket and all papers and pleadings it has
filed” between May of 2016 and October of 2016. (Doc. #
118 at ¶ 5). Bafford's lamentation that he cannot
access CM/ECF also rings hollow given that, after the Court
directed him to register for CM/ECF (Doc. # 21), he
explicitly sought to have the Court “cancel his access
to the CM/ECF, ” which request was granted (Doc. ## 33,
34). Moreover, all public filings are available through PACER
and litigants retain a duty to actively monitor the docket,
Yeschick v. Mineta, 675 F.3d 622, 629-30 (6th Cir.
2012). Finally, Bafford cannot now seek relief for an issue
he admittedly chose not to bring to the Court's attention
since the discovery deadline has long ago passed.
ADJUDGED, and DECREED:
Defendant Frank M. Bafford's “Motion to Dismiss for
Violation of Due ...