Opinion
Case No.: 03-21063-CIV-ALTONAGA/Bandstra
November 14, 2003
John J. Hottman, Esq., for Plaintiff
Alejandro Vilarello, Esq., Henry J. Hunnefield, Esq., for Defendants
ORDER ON PLAINTIFFS MOTION FOR SUBSTITUTED SERVICE
THIS CAUSE came before the Court upon Plaintiff, David Allen's ("Allen") Motion for Substituted Service ( D.E. 11), filed on June 5, 2003. The Court has carefully reviewed the Motion, the response and reply memoranda, and applicable law.
Allen moves the Court to permit substituted service of process on three Defendants: Officer Carlos Avila, Officer Jack Calvar and Lieutenant Israel Gonzalez. The parties agree that the Motion is moot as to Avila and Calvar because these Defendants have accepted service and have responded to the Complaint since the filing of the motion for substituted service. The City of Miami objects, however, to the requested substituted service on Gonzalez.
As to Defendant Gonzalez, Allen requests that the Court either (a) order substituted service by (i) regular and certified mail at the last known address, (ii) regular mail in care of the City of Miami Police Department, (iii) service upon the Chief of Police for the City of Miami, (iv) posting, (v) publication, and/or (vi) any other methods suggested by the Court; or (b) order the City of Miami to disclose the following information as to Defendant Gonzalez so that personal service may be attempted: (i) residence address, (ii) mailing address, (iii) date of birth, and (iv) social security number. As a less desirable alternative to a court order, Allen's counsel has previously suggested that one way of obtaining current addresses for Gonzalez would be for counsel to depose a records custodian for the City of Miami, who could disclose such information off the record.
The City of Miami maintains that Gonzalez is no longer under its control because he was suspended from active duty. The City of Miami also argues that Allen's motion is defective because Allen has failed to cite any legal basis for the relief sought. The motion does not indicate any efforts on the part of Allen to locate the whereabouts of, or to attempt service on Lieutenant Gonzalez, or show Gonzalez is evading service of process. Furthermore, the City argues that, pursuant to Section 119.07(3)(i)(1) of the Florida Statutes, the records custodian for the City of Miami would not be permitted in any event to release the personal information requested by Allen on or off the record.
1. Service by Regular and Certified Mail, or by Service on the City of Miami Police Department
Allen fails to point to any statute or other authority that authorizes service on Gonzalez by regular and certified mail at the last known address, regular mail directed to the City of Miami Police Department, or by serving the Chief of Police for the City of Miami. Allen has failed to make the necessary allegations to permit service under Section 48.151(1) of the Florida Statutes, which provides for substituted service on statutory agents for certain persons, because Allen has failed to identify any law that designates the City of Miami Police Department, or the Chief of Police, or any other public officer, board, agency, or commission as the agent for service of process on Gonzalez. FLA. STAT. § 48.151(1). Moreover, the methods of substituted service on nonresidents provided in Section 48.161(1) of the Florida Statutes are not available to Allen because Allen fails to allege that Gonzalez is a nonresident, or is a person who is purposefully concealing his whereabouts. FLA. STAT. § 48.161(1). Thus, Allen is not entitled to serve Gonzalez by mailing or by service upon the Police Department or its Chief of Police.
2. Service by Posting
Service by posting is permitted only in actions where the Court may obtain in rem jurisdiction over a thing or a piece of property, without obtaining in personam jurisdiction over the individual. See FLA. STAT. § 48.183 (allowing service by posting in landlord-tenant actions for possession of premises); FLA. STAT. § 49.10(1)(b) (allowing service by posting in actions (1) for dissolution or annulment of marriage, (2) for adoption, and (3) in which personal service of process or notice is not required by the statutes or the Constitution of Florida or the Constitution of the United States). In other words, "[s]ervice by posting is adequate to determine interest in the property but is not sufficient to obtain personal jurisdiction over the defendants for the purpose of entering a money judgment, which may be enforced against other asserts." Springbrook Commons, Ltd. v. Brown, 761 So.2d 1192, 1194 (Fla. 4th DCA 2000) ("[S]ervice upon property provides adequate notice to defendants for any claims against the property thereby conferring jurisdiction upon the court. . . . Although posting provides adequate service upon property for the person obtaining possession, substitute service does not confer jurisdiction upon the person of the defendant.") (citations omitted). Because there is no property involved in this case over which the Court could obtain in rem or quasi in rem jurisdiction, and the Court would be required to have personal jurisdiction over Defendant Gonzalez in order to enter a judgment against him individually, the statutory alternative to personal service of service by posting is not available here.
3. Service by Publication
In this case, Allen's claims include state law tort claims for gross negligence, spoliation of evidence, false imprisonment and arrest, malicious prosecution and assault and battery, and claims under 42 U.S.C. § 1983 based on allegedly negligent conduct by Defendants in violation of Allen's constitutional rights under the Fourth and Fourteenth Amendments. Section 49.011 of the Florida Statutes lists the actions in which service of process by publication is allowed, and this action does not fall into any of the enumerated categories. Service by publication is unauthorized in negligence actions because a personal judgment is sought, and therefore, personal service is deemed necessary to satisfy due process. See, e.g., Usatorres v. Marina Mercante Nicaragnenses, 768 F.2d 1285, 1286 n. 1 (11th Cir. 1985); Alan Restaurant Corp. v. Walder, 399 So.2d 1128, 1129-30 (Fla. 4th DCA 1981). See also Huguenor v. Huguenor, 420 So.2d 344, 346 (Fla. 5th DCA 1982) (finding that action for money damages based on the toil of conversion was not the type of action where service of process could be obtained by publication); Drake v. Scharlau, 353 So.2d 961, 963 n. 1 (Fla. 2d DCA 1978) (finding constructive service of process could not confer jurisdiction over person of defendant in an in personam tort action). Because Allen seeks a personal judgment against Gonzalez, to obtain in personam jurisdiction Allen must personally serve the Defendant.
The statute provides that service of process by publication may be made only in actions or proceedings:
(1) To enforce any legal or equitable lien or claim to any title or interest in real or personal property within the jurisdiction of the court or any fund held or debt owing by any party on whom process can be served within this state. (2) To quiet title or remove any encumbrance, lien, or cloud on the title to any real or personal property within the jurisdiction of the court or any fund held or debt owing by any party on whom process can be served within this state. (3) To partition real or personal property within the jurisdiction of the court. (4) For dissolution or annulment of marriage. (5) For the construction of any will, deed, contract, or other written instrument and for a judicial declaration or enforcement of any legal or equitable right, title, claim, lien, or interest thereunder. (6) To reestablish a lost instrument or record which has or should have its situs within the jurisdiction of the court. (7) In which a writ of replevin, garnishment, or attachment has been issued places any property, fund, or debt in the custody of a court. (8) In which any other writ or process has been issued and executed which places any property, fund, or debt in the custody of a court. (9) To revive a judgment by motion or scire facias. (10) For adoption. (11) In which personal service of process or notice is not required by the statutes or constitution of this state or by the Constitution of the United States. (12) In probate or guardianship proceedings in which personal service of process or notice is not required by the statutes or constitution of this state or by the Constitution of the United States. (13) For permanent commitment of a child pursuant to s. 39.41. (14) For temporary custody of a minor child, under ss. 751.01-751.05.
FLA. STAT. § 49.011.
4. Disclosure of Personal Information by The City of Miami
Contrary to Allen's assertions, the City of Miami and its records custodian are prohibited by the Public Records Act, Section 119.07 of the Florida Statutes, from disclosing personal information regarding Gonzalez, including his addresses, date of birth and social security number, without a court order. See FLA. STAT. § 119.07(3)(i)(1) ("The home addresses, telephone numbers, social security numbers, and photographs of active or former law enforcement personnel . . . are exempt from the provisions of subsection (1) [which permit public access to other information contained in public records]") (emphasis added); see also Henderson v. Perez, 835 So.2d 390, 391-92 (Fla. 2d DCA 2003) (home addresses, social security numbers and photographs of law enforcement officers were exempted from public disclosure under Section 119.07). Information that is exempt from disclosure under Section 119.07, however, may be discovered upon a showing of "exceptional necessity" or "extraordinary circumstances." Henderson, 835 So.2d at 392 (citing Dep't of Highway Safety Motor Vehicles v. Krejci Co., 570 So.2d 1322 (Fla. 2d DCA 1990)). In Henderson, for example, the Court found that plaintiff failed to make a showing of exceptional necessity or extraordinary circumstances sufficient to require production of information during discovery in a civil action. Id. at 392. The Court rejected plaintiff's argument that without the home addresses and photographs often law enforcement officers he would be unable to effectively investigate them and attack their credibility should they be witnesses at the trial, or to prove any of his claims or rebut any defenses.
In contrast to the plaintiff in Henderson, Allen has made a showing of exceptional necessity or extraordinary circumstances. Allen's private investigator who ran computer searches in an attempt to find a last known address for Defendant Gonzalez. That search produced 21 persons with the name "Israel Gonzalez" living in the area. The search engine used also would not have revealed unlisted telephone numbers or any other identifying information. Allen has no information regarding the this Defendant, and therefore, cannot complete service of process on Gonzalez to bring him before the Court. A court order requiring disclosure is therefore warranted.
For all the foregoing reasons, it is
ORDERED AND ADJUDGED as follows:
1. Plaintiff's Motion for Substituted Service (D.E. 11) is GRANTED in part.
2. The City of Miami is directed to disclose any and all of the following information in its possession concerning the: (i) residence address, (ii) mailing address, (iii) date of birth, and (iv) social security number of Defendant, Israel Gonzalez. Any protections requested by the City of Miami regarding its disclosure of personal information regarding Defendant Gonzalez shall be presented to the Court by way of a proposed stipulated confidentiality order, which shall be filed on or before November 26, 2003. The City of Miami is not required to make disclosures until the confidentiality order is executed and made a part of the record.DONE AND ORDERED in Chambers at Miami, Miami-Dade County, Florida