Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wittgenfeld v. Lockett

United States District Court, M.D. Florida, Fort Myers Division

June 15, 2017

DALLAS WITTGENFELD and DANIEL A. BERNATH, Plaintiffs,
v.
ROBERT LOCKETT, DIANE SHIPLEY, DON SHIPLEY and EXTREME SEAL ADVENTURES, Defendants.

          ORDER

          MAC R. MCCOY UNITED STATE? MAGISTRATE JUDGE

         Pending before the Court are Plaintiffs' Motion for Extension of Time to Serve Diane Shipley and Don Shipley (Doc. 33) filed on June 6, 2017 and Plaintiffs' Second Motion for Entry of Clerk's Default Against Extreme Seal Adventures (Doc. 34) filed on June 6, 2017. Defendants Diane Shipley and Don Shipley made responsive filings (Docs. 37-38) to Plaintiffs' Motions on June 8-9, 2017. The Court addresses the issues raised by the Motions and the responsive filings below.

         I. Plaintiffs' Motion for Extension of Time to Serve Diane Shipley and Don Shipley (Doc. 33)

         In Plaintiffs' Motion for Extension of Time to Serve Diane Shipley and Don Shipley (Doc. 33), Plaintiffs reiterate their contention that Defendants Diane Shipley and Don Shipley have been served in this case. (Doc. 33 at 1). Notwithstanding this contention, Plaintiffs request an extension of time until July 28, 2017 to serve Defendants Diane Shipley and Don Shipley. (Id. at 12). In support, Plaintiffs make a number of startling contentions, which the Court declines to address at this time. (See Id. at 1-12). Buried within these claims, however, is an assertion that Defendants have a scheduled court appearance on June 28, 2017 and that Plaintiffs will attempt to have Defendants Diane Shipley and Don Shipley served at that time. (Id. at 12).

         Defendants Diane Shipley and Don Shipley made a responsive filing (Doc. 38) to the Motion on June 9, 2017. Defendants ask that the Court “quash all of this.” (Id. at 2). Specifically, Defendants argue that they have not yet been properly served and that Plaintiffs are harassing them. (Id. at 1-2).

         II. Plaintiffs' Second Motion for Entry of Clerk's Default Against Extreme Seal Adventures (Doc. 34)

         In their Second Motion for Entry of Clerk's Default Against Extreme Seal Adventures (Doc. 34), Plaintiffs argue that Extreme Seal Adventures has been properly served. (Id. at 2). Plaintiffs - pointing to the previously filed Return of Service (Doc. 16) - contend that “service on that corporation was made at the address listed by that corporation as its address and was served on a person who stated she was authorized to accept service.” (Id.). Thus, Plaintiffs seek a default against Extreme Seal Adventures. (Id. at 4).[1]

         Defendants Diane Shipley and Don Shipley made a responsive filing (Doc. 37) on June 8, 2017. Defendants state that they “clearly understand that an attorney is required to file for a business being sued.” (Id. at 1). Notwithstanding this acknowledgement, however, Defendants Diane Shipley and Don Shipley “merely submit” information from what they claim is the “Official” Maryland Secretary of State website “showing that Extreme SEAL is not located at any hardware store.” (Id. at 1). Defendants state that Plaintiff Bernath “has made an entry himself under some ‘unofficial' website called Maryland Business Express to deceive the courts” regarding proper service of process. (Id.). Defendants claim they are being harassed by Plaintiffs. (Id.). Defendants Diane Shipley and Don Shipley move to quash service for Extreme Seal Adventures. (See id.).

         III. Analysis

         As an initial matter, the Court notes that it previously found that Plaintiffs had not demonstrated that service on Diane Shipley, Don Shipley, or Extreme Seal Adventures was effective or that their motion should be granted. (Doc. 29 at 3). After making that finding, the Court ordered Plaintiffs to demonstrate that Defendants Diane Shipley, Don Shipley, and Extreme Seal Adventures were properly served no later than June 9, 2017. (Id. at 4). The Court warned Plaintiffs that failure to comply with this Order may result in Defendants Diane Shipley, Don Shipley, and Extreme Seal Adventures being dismissed from this action pursuant to Fed.R.Civ.P. 4(m) for failure to timely serve Defendants. (Id.).

         In this instance, Plaintiffs still have not demonstrated that Diane Shipley, Don Shipley, or Extreme Seal Adventures have been properly served. Nevertheless, Plaintiffs have requested an extension of time to serve Defendants Diane Shipley and Don Shipley. (Doc. 33 at 12).

         The Court notes that “[i]f 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.” Fed.R.Civ.P. 4(m). Notwithstanding this time frame, however, “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id.

         Here, the Court finds that Plaintiffs have demonstrated good cause for an extension of time. Specifically, it appears that Plaintiffs are actively attempting to serve Defendants. Thus, the Court will allow Plaintiffs additional time to serve Defendants Diane Shipley and Don Shipley. The Court warns Plaintiffs, however, that the Court is not inclined to grant any further extensions of time to serve Defendants. Accordingly, Plaintiffs must demonstrate that Defendants Diane Shipley and Don Shipley have been properly served no later than July 28, 2017. If Plaintiffs fail to do so, then the Undersigned will recommend that this action be dismissed as to Defendants Diane Shipley and Don Shipley for failure to serve Defendants timely pursuant to Fed.R.Civ.P. 4(m).

         Turning to Plaintiffs' Second Motion for Entry of Clerk's Default Against Extreme Seal Adventures (Doc. 34), the Court notes that it previously informed Diane Shipley and Don Shipley that because Extreme Seal Adventures is a business entity, it “may appear and be heard only through counsel admitted to practice in the Court pursuant to Rule 2.01 or Rule 2.02.” M.D. Fla. R. 2.03(e) (emphasis added). Don Shipley and Diane Shipley acknowledged this fact in their responsive filing. (Doc. 37 at 1). Nevertheless, Don Shipley and Diane Shipley purport to make arguments on behalf of Extreme Seal Adventures in their responsive filing to Plaintiffs' Motion. (See Doc. 37). The Court cannot permit Don Shipley and Diane Shipley to make any arguments on behalf of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.