United States District Court, M.D. Florida, Tampa Division
UNITED STATES OF AMERICA ex rel. CATHERINE MCDERMOTT, Plaintiff,
GERIATRICS PSYCHOLOGICAL SPECIALISTS, INC., et al., Defendants.
ANTHONY E. PORCELLI UNITED SPATES MAGISTRATE JUDGE
initiated this action under seal against Defendants,
asserting that Defendants submitted false or fraudulent
claims for payment to the Medicare program in violation of
the Federal False Claims Act, 31 U.S.C. § 3729, et
seq. (Doc. 1). After the United States filed its notice
that it would not intervene (Doc. 15), the district judge
unsealed the case and directed Relator to serve a copy of the
Complaint upon Defendants (Doc. 16). Following that, Relator
sought several extensions to serve Defendants GPS II, LLC
(“GPS II”) and Dr. John McDonough (“Dr.
McDonough”), each of which the Court granted
(see Docs. 18, 19, 22, 23, 25, & 26). Finally,
after several failed attempts to serve GPS II and Dr.
McDonough, Relator moved for an extension of time in which to
engage in substituted service on those Defendants (Doc. 34).
Upon consideration, the Court granted Relator's request
for an extension to engage in substituted service (Doc. 35).
Relator sought an extension of time to submit the
notification of the Secretary of State's acceptance of
substituted service on behalf of GPS II and Dr. McDonough
(Doc. 44). The Court granted Relator's request and
permitted Relator to file the Secretary of State's
acceptance or denial of substituted service within seven days
of receipt of the notification of acceptance or denial (Doc.
45). Relator then filed the acceptance of service by the
Secretary of State on behalf of both GPS II and Dr. McDonough
along with the summonses issued on July 29, 2019 (Doc. 49).
Notwithstanding the substituted service, neither GPS II nor
Dr. McDonough appeared or otherwise responded to the
Complaint. As a result, Relator now moves for entry of a
default against GPS II and Dr. McDonough (Doc. 51 & 52).
Section 48.181, Florida Statutes, service may be effectuated
upon a nonresident of the state or a party who conceals his
or her whereabouts in certain circumstances. The statute
requires a plaintiff to serve a copy of the summons and
complaint on the Secretary of State and, importantly, to
provide notice of that service to the defendant by mailing
him or her a copy of the process via certified or registered
mail. Fla. Stat. §§ 48.161(1), 48.181; Ferrier
v. Atria, 728 Fed.Appx. 958, 961 (11th Cir. 2018).
Namely, “[t]o effectuate proper service of process
pursuant to Florida Statutes Section 48.161, a plaintiff
must: (1) allege facts in the complaint that bring the
defendant within the purview of the substitute service
statute (e.g., that the defendant is a nonresident
subject to the court's jurisdiction who cannot be located
despite due diligence or that the defendant is actively
concealing his or her whereabouts); (2) serve the Secretary
of State by providing him or her (or their delegate) with a
copy of the summons and complaint; (3) pay the requisite fee
to the Secretary of State; (4) provide
Notice of service upon the Secretary of
State to the defendant by sending him or her
a copy of the summons and the complaint by registered
or certified mail; (5) file the registered
or certified mail return receipt; and (6) file an
affidavit of compliance on or before the return date of the
process.” EHR Aviation, Inc. v. Lawson, No.
3:09-cv-210-J-32TEM, 2011 WL 46119, at *1 (M.D. Fla. Jan. 6,
2011) (emphasis in original; citations omitted). Though
courts may dispense with the filing of a postal receipt if a
plaintiff invokes a substituted service statute on the ground
that the defendant is evading service, that does not mean
that a plaintiff can simply ignore the requirement. See
Id. at *2. Indeed, given that substituted service is an
exception to the general rule requiring that a defendant be
personally served, due process requires strict compliance
with the statutory provisions. Id. (citation
omitted). Accordingly, courts excuse the failure to comply
with the postal receipt requirement when the record
demonstrates that the party to be served deliberately refused
to accept delivery. Id. (citations omitted).
instance, although the record indicates that GPS II and Dr.
McDonough may be attempting to evade service of process, such
evasion simply provides a basis for use of Florida's
substitute service statutes to effectuate service. In order
to properly effectuate service via substituted service,
Relator must strictly comply with the requirements set forth
in the Florida Statutes. Nothing in the record indicates that
Relator sent the notice, copy of the summons, or copy of the
Complaint by registered or certified mail to either GPS II or
Dr. McDonough following service on the Secretary of State.
Accordingly, Relator failed to strictly comply with the
requirements for substituted service. After consideration,
therefore, it is hereby
Relator's Motion for Entry of Court's Default Against
Defendants GPS II, LLC and Dr. John McDonough III (Doc. 51)
is DENIED WITHOUT PREJUDICE.
Relator shall have up to and including January 8, 2020 to
effectuate substituted service of process in accordance with
Sections 48.181 and 48.161, Florida Statutes. Relator shall
re-serve the Florida Secretary of State and send the required
notice forthwith. Any renewed request for entry of default
against GPS II or Dr. McDonough shall include the postal
receipt and the affidavit ...