The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHRISTINE E. MARFUT,
Plaintiff,
v. Case No: 2:19-cv-172-JES-MRM
CHARLOTTE COUNTY, FLORIDA,
RHONDA LEONARD, individual
and in her official
capacity, GLENN SIEGEL,
Special Magistrate in his
official capacity and as an
individual, and PROMPT
TOWING SERVICE,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Motion for
Relief Under Fed. R. Civ. P. 60 (Doc. #53) and Motion to Amend and
Make Additional Findings of Fact Under Fed. R. Civ. P. 52(b) (Doc.
#54) filed on June 1, 2021.
Plaintiff seeks relief from the April 7, 2021 Report and
Recommendation (Doc. #45) and May 4, 2021 Opinion and Order (Doc.
#46) adopting the Report and Recommendation. Judgment (Doc. #47)
was entered and the case is currently closed. Plaintiff also
seeks amended or additional findings pursuant to Fed. R. Civ. P.
52(b) “in light of the additional information and argument” that
service was effective. On May 6, 2021, the Court granted plaintiff
an extension of time to file objections to the Report and
Recommendation but otherwise denied a request for additional time
to serve process. (Doc. #50.) Rather than file objections,
plaintiff filed the two motions. The Court will grant
reconsideration to the extent that the Opinion and Order adopting
the Report and Recommendation will be vacated to allow the Court
to consider plaintiff’s objections. The Court will also grant
plaintiff’s request for additional findings to the extent that the
arguments therein are construed as her objections as to why service
of process was sufficient.
On June 9, 2020, Proofs of Service were filed as to Glenn
Siegel, Charlotte County, Rhonda Leonard, and Prompt Towing
Service. (Docs. ## 36-39.) On July 16, 2020, plaintiff moved for
the entry of a default against each of these defendants. (Doc.
#40.) The motion was denied on December 4, 2020. (Doc. #41.)
Specifically, the Magistrate Judge found that plaintiff had not
met her burden to prove that she properly effectuated service
against Charlotte County, Florida because there was no indication
that Samantha Dipiazza was authorized to accept service on the
county’s behalf. (Doc. #41, p. 3.) As to Rhonda Leonard and
Glenn Siegel, who are sued individually and officially, the
Magistrate Judge found that service on Samantha Dipiazza at the
Charlotte County Building Department was insufficient. First,
there was no showing of a relationship between defendants and Ms.
Dipiazza for individual service, and second, there was no showing
that Ms. Dipiazza was authorized to accept service on their behalf.
(Id., pp. 5-6.) As to Prompt Towing Service, a corporation, the
Magistrate Judge found that there was no showing that the
unidentified man was authorized to accept service. (Id., pp. 8-
9.) “In sum, Plaintiff . . . failed to provide enough factual
information to determine whether service in this case was proper
as to any Defendant.” (Id., p. 9.) Plaintiff was provided an
extension until January 4, 2021, to properly effectuate service of
process. Plaintiff was also granted a further extension of time
until January 25, 2021. (Doc. #43.)
On January 19, 2021, plaintiff filed Evidence That Service of
Process Was Effected (Doc. #44) to argue that service was properly
effectuated. Plaintiff did not serve any of the defendants anew.
Upon review, the Magistrate Judge found that plaintiff had failed
to cure the deficiencies in her prior motion, and issued a Report
and Recommendation (Doc. #45) recommending dismissal for failure
to prosecute. The Report and Recommendation was adopted and the
case dismissed without prejudice. The Court will now consider
plaintiff’s objections.
In the Motion to Amend and Make Additional Findings of Fact,
plaintiff advances the following facts in support of service
effectuated on June 8, 2020, by Andrea Weinberger at 18400 Murdock
Circle, Port Charlotte, Florida:
1. Rhonda Leonard’s business card shows she works as a
Charlotte County Code Enforcement Officer (doc. #54, p.
1.);
2. All Orders and mailings from Special Magistrate Glenn
Siegel bear the Murdock Circle address on the envelopes
(id.);
3. Charlotte County was operating under COVID-19 protocols
and an authorized employee was stopping those entering the
building limiting personal contact (id.);
4. Plaintiff stated that Ms. DiPiazza gave Andrea Weinberger
her name and stated “that she was authorized to accept the
three envelopes addressed to Charlotte County and to two
employees of Charlotte County” (id.);
5. Plaintiff blames Charlotte County’s “ineptitude” during
the COVID-19 protocols for not properly handling paperwork
(id., p. 2.);
6. As to Prompt Towing Service, plaintiff argues that the
entire vehicle storage yard was fenced, locked and posted
“No Trespassing”, that the business is listed as “family
owned for 30 years”, “[t]here is nothing to prove that this
man is not authorized to accept Court Documents”, the man
“was within the locked confines of this business,” and “it
is up to Defendant to prove that this man was not authorized
to receive the Summons and Complaint, through the cashier
window” (id.).
A. Individual Service
The individuals are sued in their official and individual
capacities. Therefore, service of process must conform with Fed.
R. Civ. P. 4(i)(2) (registered or certified mail to the employee)
and Fla. Stat. § 48.111(2) (service on public employee) for an
employee sued officially, and Fed. R. Civ. P. 4(e) and Fla. Stat.
§ 48.031 for service on the “usual place of abode” of an
individual. For Glenn Siegel and Rhonda Leonard, the documents
were left with Samantha Dipiazza only, and neither defendant was
personally served or served at their homes. (Docs. ## 36, 38.)
The objections are overruled.
B. Charlotte County
A state or local government agency must be served by “(A)
delivering a copy of the summons and of the complaint to its chief
executive officer; or (B) serving a copy of each in the manner
prescribed by that state's law for serving a summons or like
process on such a defendant.” Fed. R. Civ. P. 4(j)(2). Under
state law, service may be made
(a) On the president, mayor, chair, or other
head thereof; and in his or her absence;
(b) On the vice president, vice mayor, or vice
chair, or in the absence of all of the above;
(c) On any member of the governing board,
council, or commission.
Fla. Stat. § 48.111(1). The process server does not indicate that
Ms. Dipiazza fulfilled any of these requirements. The Proof of
Service describes her as the person “seated at front desk in
lobby.” (Doc. #37.) There is nothing to indicate that a CEO, or
a member of a governing board was seated at the front desk in the
lobby, or that Ms. Dipiazza was in a position of power. Even if
restrictions were in place due to COVID-19, there is no indication
that plaintiff made any effort to find an appropriate person or
attempt an alternative method of service. The objection is
overruled.
C. Prompt Towing
A corporation is served in the manner prescribed by Rule
4(e)(1) for serving an individual, or by “by delivering a copy of
the summons and of the complaint to an officer, a managing or
general agent, or any other agent authorized by appointment or by
law to receive service of process and--if the agent is one
authorized by statute and the statute so requires--by also mailing
a copy of each to the defendant.” Fed. R. Civ. P. 4(h)(1)(B).
Prompt Towing is a Florida corporation with a registered agent
(Sharon Murray) in compliance with Fla. Stat. § 48091 according to
the Florida Division of Corporations website.1 Under Florida law,
1 https://dos.myflorida.com/sunbiz/.
(1) Process against any private corporation,
domestic or foreign, may be served:
(a) On the president or vice president, or
other head of the corporation;
(b) In the absence of any person described in
paragraph (a), on the cashier, treasurer,
secretary, or general manager;
(c) In the absence of any person described in
paragraph (a) or paragraph (b), on any
director; or
(d) In the absence of any person described in
paragraph (a), paragraph (b), or paragraph
(c), on any officer or business agent residing
in the state.
Fla. Stat. § 48.081(1). Alternatively, process may be served on
the registered agent. Fla. Stat. § 48.081(3)(a). The process
server served “an older man with a gray beard” who opened a window
to the office but did not take the envelope so Andrea Weinberger
left the envelope on the ledge outside the window. (Doc. #39.)
Clearly, service of process did not comply with the requirements
of the federal and state statute. The objection is overruled.
The burden is not on defendant to prove that service was not
effective.
A district judge “shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. §
636(b)(1). See also United States v. Farias-Gonzalez, 556 F.3d
1181, 1184 n.1 (11th Cir. 2009). This requires that the district
judge “give fresh consideration to those issues to which specific
objection has been made by a party.” Jeffrey S. v. State Bd. of
Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609,
94th Cong., § 2 (1976)). Having reviewed the objections de novo,
the Court finds that the Report and Recommendation should be
adopted.
Accordingly, it is hereby
ORDERED:
1. Plaintiff's Motion for Relief Under Fed. R. Civ. P. 60
(Doc. #53) is GRANTED to the extent that the Opinion and
Order (Doc. #46) and Judgment (Doc. #47) are vacated.
2. Plaintiff’s Motion to Amend and Make Additional Findings
of Fact Under Fed. R. Civ. P. 52(b) (Doc. #54) is GRANTED
to the extent that the Court construes the arguments
therein as objections to the Report and Recommendation.
3. The Report and Recommendation (Doc. #45) is adopted and
the objections in the Motion to Amend and Make Additional
Findings of Fact Under Fed. R. Civ. P. 52(b) (Doc. #54)
are overruled.
4. The Clerk shall enter an amended judgment dismissing the
case without prejudice for failure to prosecute, and close
the file.
5. Plaintiff’s Motion for Extension of Time to File Notice of
Appeal Due to Excusable Neglect and Good Cause (Doc. #55)
is DENIED as moot as the previous judgment was vacated and
a new judgment will be entered. Plaintiff may file a
timely amended notice of appeal from this Opinion and Order
and the Amended Judgment.
DONE and ORDERED at Fort Myers, Florida, this 7th day of
June, 2021.
□ — (2. _ ;
AA) Pe,
JGHH E. STEELE
SHYIOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record