Brito Solis v. TD Bank USA, N.A.et al

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

WILZAYLAN BRITO SOLIS,

Plaintiff,

v. Case No: 5:23-cv-208-JSM-PRL

AMERICAN EXPRESS NATIONAL

BANK, CAPITAL ONE, N.A.,

CITIBANK, N.A., DISCOVER

FINANCIAL SERVICES INC., LVNV

FUNDING LLC, MIDLAND CREDIT

MANAGEMENT INC., RESURGENT

CAPITAL SERVICES, L.P.,

SYNCHRONY BANK, TD BANK

USA, N.A., UPLIFT LLC, EQUIFAX

INFORMATION SERVICES LLC,

EXPERIAN INFORMATION

SOLUTIONS, INC., TRANS UNION

LLC, CREDIT CONTROL LLC,

RADIUS GLOBAL SOLUTIONS LLC

and SOURCE RECEIVABLES

MANAGEMENT, LLC,

Defendants.

ORDER

Before the Court, upon referral, in this action under the Fair Credit Reporting Act

(“FCRA”), 15 U.S.C. § 1681, is the plaintiff’s motion for leave to correct service on Defendant

Uplift, Inc., and to dismiss Uplift, LLC, as a Defendant. (Doc. 33).

On April 7, 2023, Plaintiff effectuated service on Uplift, LLC, a named Defendant in

the complaint. (Doc. 30). Consistent with allegations in the complaint, Uplift, LLC, was

served at its registered agent’s address for service in Florida, “Cameron Brown, located at

28641 Tanner Dr., Wesley Chapel, FL 33543.” (Doc. 1 at 1, 2, 7, ¶ 33; Doc. 30). However,

according to the instant motion Uplift, LLC, was served because of an “administrative

mistake,” is unrelated to this action, and should be dismissed. (Doc. 33 at 1).

First, to the extent that Plaintiff moves to dismiss Uplift, LLC, as a Defendant, the

motion is treated as a notice of voluntary dismissal pursuant to Federal Rule of Civil

Procedure 41 that is effective upon filing. Absolute Activist Value Master Fund Ltd. v. Devine, 998

F.3d 1258, 1265 (11th Cir. 2021), cert. denied, 212 L. Ed. 2d 402, 142 S. Ct. 1413 (2022) (“a

plaintiff's voluntary dismissal under Rule 41(a)(1)(A)(i) ‘is effective immediately upon [ ]

filing,’ and thus no further court order is necessary to effectuate the dismissal.”) (quoting

Matthews v. Gaither, 902 F.2d 877, 880 (11th Cir. 1990)). Under Rule 41(a)(1)(A)(i), when, as

here, none of the defendants have served their answer or moved for summary judgment, the

plaintiff may dismiss the action without a court order. Fed. R. Civ. P. 41(a)(1)(A)(i) (“the

plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before

the opposing party serves either an answer or a motion for summary judgment”); see In re

Esteva, 60 F.4th 664, 677 (11th Cir. 2023) (noting that Federal Rule of Civil Procedure 41

“allow[s] plaintiffs to voluntarily dismiss less than the entire action so long as they dismiss a

defendant in its entirety (i.e., they dismiss all of the claims brought against that defendant)”)

(citations omitted).

Accordingly, the Court acknowledges that Defendant, Uplift, LLC, has been

voluntarily dismissed without prejudice. See Fed. R. Civ. P. 41(a)(1)(B).

Second, to the extent that the motion requests that the Court allow Plaintiff to correct

service on Uplift, Inc., the Court is unable to do so, as the complaint plainly names Uplift,

LLC, as Defendant, even providing its address for service. (Doc. 1 at ¶ 33; Doc. 33 at 1).

Instead, Plaintiff should file an amended complaint that properly names Uplift, Inc., as the

defendant. Fed. R. Civ. P. 15(a)(1)(A) (“A party may amend its pleading once as a matter of

course within: (A) 21 days after serving it”). Accordingly, to the extent Plaintiff requests to

substitute service on Uplift, Inc., the motion is denied, and Plaintiff may file an amended

complaint properly naming Uplift, Inc., as the defendant, by or before April 28, 2023.

DONE and ORDERED in Ocala, Florida on April 20, 2023.

ef

PHILIP R. LAMMENS

United States Magistrate Judge

Copies furnished to:

Presiding District Judge

Counsel of Record

Unrepresented Party

Courtroom Deputy

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