“[T]here is no question that FERPA’s nondisclosure provisions fail to confer enforceable rights.”
How later courts described this case
- “[T]here is no question that FERPA’s nondisclosure provisions fail to confer enforceable rights.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
L. YVONNE BROWN,
Plaintiff,
v. Case No.: 2:20-cv-286-FtM-38MRM
ELISABETH DEVOS, UNITED
STATES DEPARTMENT OF
EDUCATION, FLORIDA GULF
COAST UNIVERSITY BOARD OF
TRUSTEES, KARL SMESKO,
KELLY BROCK and RODERICK
ROLLE,
Defendants.
/
ORDER1
Before the Court is Plaintiff L. Yvonne Brown’s Notice of Compliance (Doc. 12). In
denying Brown’s motion to proceed in forma pauperis, United States Magistrate Judge
Mac R. McCoy ordered Brown to amend the original complaint or pay the filing fee and
serve Defendants by June 29. (Doc. 9 at 4). Brown failed to do either on time, but
eventually (on July 6) payed the fee and filed an amended complaint (Doc. 10). Still,
Brown never served Defendants, so the Court ordered her to show cause why the case
should not be dismissed for failure to serve and failure to prosecute. (Doc. 11). That
response—or proper service—was due July 22. The Order warned failing to comply “will
result in dismissal of this action without further notice.” (Doc. 11 at 2).
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availability and functionality, and a failed hyperlink does not affect this Order.
After reviewing the Notice of Compliance, the Court dismisses without prejudice
for failure to serve, failure to prosecute, and failure to comply with a Court Order.
Brown contends she served Defendants’ counsel and includes a certified mail
receipt for an unidentified person in Orlando. Liberally construing the filing, the Court
notes the person represented Defendants Florida Gulf Coast University (“FGCU”) and its
employees in two other cases Brown brought against them. Brown v. Fla. Gulf Coast
Univ. Bd. or Trs., 2:18-cv-00157-JES-MRM (M.D. Fla.); Brown v. Fla. Gulf Coast Univ.
Bd. of Trs., 2:18-cv-00714-SPC-MRM (M.D. Fla.). Yet there is no indication this lawyer
still represents FGCU. Nor does Brown explain if the attorney represents Defendants
United States Department of Education and Secretary Elizabeth DeVos. What is more,
Brown failed to file a return of service and only included a certified mail receipt. Generally
“certified mail, even to an authorized agent, does not satisfy Rule 4’s service
requirements.” Thorpe v. Dumas, 788 F. App’x 644, 648 (11th Cir. 2019) (interpreting
Fed. R. Civ. P. 4). And nothing in the record suggests any Defendants waived service,
so sending the amended complaint certified mail was improper. Bufkin v. Scottrade, Inc.,
812 F. App’x 838, 844 (11th Cir. 2020) (“First, service by certified mail was not proper
under either federal or Florida law because [plaintiff] presented no evidence that the
[defendants] waived personal service.”). While certified mail can be a proper way to serve
a United States agency, see Fed. R. Civ. P. 4(i), Brown has not done so. And finally,
there is neither a summons nor a request for one in the record. A plaintiff must obtain
and serve a summons along with the complaint. Fed. R. Civ. P. 4(b)-(c) (“A summons
must be served with a copy of the complaint. The plaintiff is responsible for having the
summons and complaint served.”). Thus, any service on Defendants could not have been
proper. See Holliday v. Syndicate 3000 at Lloyd’s Underwriters at London, No. 8:17-cv-
2063-T-33AEP, 2018 WL 2214648, at *3-4 (M.D. Fla. May 15, 2018).
Brown missed the service deadlines set by both this Court and Judge McCoy. This
failure to serve or comply with the Court’s Orders shows a lack of diligently prosecuting
the case. And Brown offers no explanation for those deficiencies or why the Court should
excuse them. For those reasons, the Court dismisses for failure to serve, failure to
prosecute, and failure to comply with a Court Order (Doc. 11). If Brown intends to pursue
these claims, she must file a new case and properly serve Defendants.
While not relevant to that determination, the Court notes the Complaint fails on the
merits. As Judge McCoy explained, the statute at issue (FERPA) does not create a
private right of action. (Doc. 9 at 3-4). That principle is binding Supreme Court precedent.
Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002) (“[T]here is no question that FERPA’s
nondisclosure provisions fail to confer enforceable rights.”); id. at 290 (“FERPA’s
nondisclosure provisions contain no rights-creating language, they have an aggregate,
not individual, focus . . . . They therefore create no rights enforceable under § 1983.”).
And lower courts agree. 31 Foster Children v. Bush, 329 F.3d 1255, 1269-70 (11th Cir.
2003); Woodruff v. Hamilton Twp. Pub. Sch., 305 F. App’x 833, 837 (11th Cir. 2009);
Warren v. DeVry Univ., Inc., No. 1:18-cv-02595, 2019 WL 2344144, at *1 (N.D. Ga. Mar.
14, 2019). After receiving notice of this legal deficiency, Brown refiled an amended
complaint alleging the same causes of action. This buttresses the decision to dismiss.
Accordingly, it is now
ORDERED:
(1) This case is DISMISSED without prejudice for failure to serve, failure to
prosecute, and failure to comply with a Court Order (Doc. 11).
(2) The Clerk is DIRECTED to enter judgment, terminate any pending motions or
deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida this 18th day of August, 2020.
,
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record