United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
C. IRICK, UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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.
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. 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.
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.
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.
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.