United States District Court, S.D. Florida
ALTMAN UNITED STATES DISTRICT JUDGE
MATTER comes sua sponte before the Court.
Rule of Civil Procedure 4(a) governs the contents of a
federal summons and requires that a summons “be signed
by the clerk” and “bear the court's
seal.” Fed.R.Civ.P. 4(a)(1)(F)-(G). Rule 4(b), by
contrast, governs the issuance of a federal summons
and provides that, on “or after filing the complaint,
the plaintiff may present a summons to the clerk for
signature and seal.” Fed.R.Civ.P. 4(b). Finally, Rule
4(m) requires a plaintiff, within 90 days after filing the
complaint, to serve that summons, along with a copy of the
complaint, on each defendant. Fed.R.Civ.P. 4(m).
Plaintiff filed its Complaint on September 3, 2019.
See Complaint [ECF No. 1]. On December 3, 2019-one
day after the 90-day service deadline had
expired-the Court reminded the Plaintiff of its obligation to
effectuate service and sua sponte extended the
service deadline on the Plaintiff's behalf. See
December 3, 2019, Order [ECF No. 5]. But, the Court warned,
“[f]ailure to serve the Defendant will result in
dismissal without further notice.” Id.
December 5, 2019, the Plaintiff attached a “Proof of
Service” document to a docket entry it labeled
“Summons Returned Executed.” See Proof
of Service [ECF No. 9]. In that “Proof of Service,
” the Plaintiff's process server attests that he
“went to Santander Arena . . . to serve a complaint and
summons” on the Defendant. Id. ¶ 1. But,
after setting out his intention to serve both the
summons and complaint, the process server then describes in
only the vaguest terms the “documents” he says he
served. Id. ¶ 3. Notably, the process server
never avers that he served the summons on the
is now clear why: The processs server never actually served
the summons on the Defendant. In fact, the Clerk of Court
never issued any summons at all. The Plaintiff
attached no exhibits, cover sheet, or proposed summons to its
Complaint. See Compl. And, after the Plaintiff
finally filed the cover sheet on September 4, 2019,
see Cover Sheet [ECF No. 4], there is no activity of
any kind on the docket until the Court's December 3, 2019
Order requiring proof of service. Specifically, until the
Plaintiff filed its “Proof of Service” on
December 5, 2019, no summons appears anywhere on the docket.
In other words, the “documents” the process
server says he served did not include-could not have
courts have “unquestionable authority” to control
their own dockets and may dismiss an action sua
sponte-provided the Court gives notice to the plaintiff
of its intent to dismiss and an opportunity to respond.
See Frank v. Schulson et al., No. 18-14779, 2019 WL
3545891, at *1 (11th Cir. Aug. 5, 2019); see also Dynes
v. Army Air Force Exch. Serv., 720 F.2d 1495, 1499 (11th
Cir. 1983) (holding that dismissal without prejudice for
failure to comply with a court order was not an abuse of
discretion). Despite the Court's unambiguous
instructions, the Plaintiff has failed both to (1) effectuate
service within the time prescribed by the Federal Rules and
to (2) comply with this Court's orders.
4(m) requires the Plaintiff to establish “good
cause” for this failure. See Fed. R. Civ. P.
4(m). But the Plaintiff has given no cause-let alone
“good cause”-here. Nor could he have. After all,
as the Eleventh Circuit has explained, any “reliance on
. . . the notion that the court was required to issue the
summons to [the Plaintiff] without any action on his part
does not amount to good cause, but rather to the sort of
inadvertence and negligence that specifically is not good
cause for delay.” Pierce v. Kyle, 445
Fed.Appx. 201, 202 (11th Cir. 2011).
the Court hereby ORDERS that this case is
DISMISSED without prejudice. The Clerk of
Court is directed to CLOSE this case. Any
pending motions are DENIED as moot.