Opinion
Case No. 5:11-cv-593-Oc-10TBS
01-12-2012
JAMES BOYAN, as Personal Representative of the Estate of Jeffrey Boyan, deceased and on behalf of his survivors, Plaintiff, v. FIRST ACCEPTANCE INSURANCE COMPANY, Defendant.
ORDER
Pending before the Court is First Acceptance's Motion to Quash Service of Plaintiff's Writ of Garnishment (Doc. 3).
Plaintiff alleges that he is a judgment creditor of debtor, Gary Marietta (Doc. 12). In an effort to collect his judgment, plaintiff sought and received from the Circuit Court of the Fifth Judicial Circuit in and for Marion County, Florida, a writ of garnishment directed to First Acceptance Insurance Company ("First Acceptance") (Doc. 2). Plaintiff mailed a copy of the writ to Mr. Marietta's lawyer who in turn, mailed it to First Acceptance (Doc. 3). Upon receipt of the writ, First Acceptance filed the instant motion to quash arguing that it had not been properly served in accordance with § 624.422 Florida Statutes . (Id.) Plaintiff subsequently filed a Notice of Service of Process showing that the writ was served on CT Corporation as the designated agent for First Acceptance (Doc. 18-1). On November 2, 2011, First Acceptance filed its answer to the writ of garnishment (Doc. 6). The answer does not include an averment that the Court lacks jurisdiction because service of process was improper. (Id.)
If a defendant wishes to challenge service of process it must do so by filing a motion pursuant to Rule 12 Fed. R. Civ. P. before answering the complaint. When such a motion is filed, the deadline for service of an answer is stayed until 10 days after notice of the Court's ruling on the motion. Rule 12(a)(4) Fed. R. Civ. P. By filing an unqualified answer while its motion to quash was pending, First Acceptance waived the arguments in its motion to quash and conceded the writ of garnishment was properly served on it. Therefore, and because First Acceptance has otherwise litigated this case without reservation (Docket), its motion to quash is hereby DENIED.
IT IS SO ORDERED.
DONE AND ORDERED in Ocala, Florida, on January 12, 2012.
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THOMAS B. SMITH
United States Magistrate Judge
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