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Harris v. Bergen

United States District Court, M.D. Florida, Orlando Division

November 19, 2019

TAMMY HARRIS, Plaintiff,
v.
WILLIAM STEVEN BERGEN and BLAKE RICHARD SENTERS, Defendants.

          REPORT AND RECOMMENDATION

          DANIEL C. IRICK, UNITED STATES MAGISTRATE JUDGE.

         This cause comes before the Court for consideration without oral argument on the following motion:

MOTION: MOTION TO QUASH SUBSTITUTE SERVICE OF PROCESS AS TO DEFENDANT BLAKE RICHARD SENTERS AND MOTION TO DISMISS FOR FAILURE TO TIMELY SERVE PROCESS (Doc. 20)
FILED: October 9, 2019
THEREON it is RECOMMENDED that the motion be GRANTED in part and DENIED in part.

         I. Background

         On December 20, 2018, Plaintiff filed this action - related to a January 2015 automobile accident - against Defendants Bergen and Senters in state court in Brevard County, Florida. Doc. 1. In the Complaint, Plaintiff alleged, among other things, that Senters “was a non-resident, or a resident of Florida who subsequently became a non-resident, or a resident of Florida concealing his whereabouts.” Doc. 1-1 at 2.

         As of May 24, 2019, Senters had not been served, and former counsel for Senters made a special appearance and moved to dismiss for failure to serve Senters in the time provided by Fla.R.Civ.P. 1.070(j). Docs 1; 1-4 at 74-75. Plaintiff then requested an extension from the state court and was given a 60-day extension to serve Senters, making the service deadline August 16, 2019. Docs 1; 1-4 at 87. On July 25, 2019, current counsel for Senters and Bergen appeared in the case by filing a Joint Stipulation for Substitution of Counsel and a client consent signed by both Senters and Bergen. Doc. 23-1 at 17-19.

         On August 1, 2019, Bergen, who had been served personally, removed this action to this Court on the basis of the Court's diversity jurisdiction. Doc. 1. In the Notice of Removal, Bergen stated that Senters was a citizen of California - again, Bergen's attorneys also represent Senters. Id. at 4.

         On September 23, 2019, Plaintiff filed an Affidavit of Compliance by his counsel stating, among other things, that Plaintiff could not locate Senters within Florida or California, and detailing the efforts Plaintiff had made to locate and serve Senters.[1] Doc. 14 at 1. In the Affidavit, counsel explains that on June 3, 2019, he requested an alias summons for Senters from the clerk of the state court, and on June 5, 2019, sent that alias summons, the Complaint, discovery, and a check in the amount of $8.75 via certified mail to the Florida Secretary of State, who acknowledged acceptance. Id. at 4. Counsel also states that “[a]s required by F.S. 48.161, 48.081 and 48.19 copy of the Secretary of State's acceptance of the Complaint and discovery on behalf of Mr. Senters was sent by Certified Mail [] on August 8, 2019 to Mr. Senters' address listed on the police report (i.e. [], Melbourne, FL 32940).” Id. at 5. On August 10, 2019, the United States Postal Service returned the letter to the Melbourne address as “no longer at this residence. Refused.” Docs. 14; 14-1 at 22. The Affidavit concludes as follows: “It is clear from the foregoing that the Plaintiff has done all they can to find the whereabouts of [Senters] and both he and former and current opposing counsel are purposely precluding discovery and service of process.” Doc. 14 at 5.

         On October 7, 2019 - 14 days after the Affidavit was filed - Senters made a special appearance and requested an extension of time to file a motion to quash service of process and motion to dismiss. Doc. 17. The Court granted that request. Doc. 18.

         On October 9, 2019, Senters, still appearing specially, moved to quash service of process and for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(5). Doc. 20 (the Motion). In the Motion, Senters makes three arguments. First, Senters asserts that service must be quashed because the Affidavit was late filed. Id. at 4. Second, Senters asserts that Plaintiff has not filed a return receipt of certified mailing being accepted by Senters as required by Florida Statutes section 48.161, and Plaintiff has not established that such a return receipt need not be filed due to Senters evading service. Doc. 20 at 4-6. Third, Senters makes a perfunctory argument that the Court should dismiss the Complaint as against Senters for lack of service. Id. at 7.

         In response, Plaintiff first argues that she has exercised sufficient diligence to allow service pursuant to Florida Statutes section 48.161. Doc. 23 at 8-9. But that issue is not squarely addressed by the Motion. Plaintiff then concedes that the Affidavit was untimely and, in the same breath, makes a request for an extension of time to file an amended affidavit; a request for relief improperly buried within a response. Id. at 9.

         II. ...


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