Opinion
Case No: 2:14-cv-451-FtM-38CM
10-29-2014
HOWARD COHAN, Plaintiff, v. MLB GROUP, LLC, Defendant.
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This matter comes before the Court on Defendant MLB Group, LLC's Motion to Quash Service of Process and Dismiss under Rule 12(b) for Insufficient Service of Process (Doc. #9) filed on October 7, 2014. Although given the opportunity, Plaintiff Howard Cohan has not replied to the motion and the time to do so has expired. This matter is now ripe for review.
On September 4, 2014, Cohen served MLB Group. (See Doc. #8). MLB Group, however, argues this service was improper and therefore this matter should be dismissed pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. MLB Group asserts Cohan served an unnamed person described as an authorized agent rather than its registered agent; the process server was informed MLB Group's registered agent was not on the premises when service was attempted; and the employee who was given service was not authorized to accept service. Moreover, MLB Group included an affidavit to support its argument. (Doc. #9, at 3).
Service of process is a jurisdiction requirement and therefore a court lacks jurisdiction over a defendant when that defendant has not been served properly. Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990); see also Bank of Am., N.A. v. Bornstein, 29 So.3d 500, 502 (Fla. 4th DCA 2010) (same). Pursuant to Rule 12(b)(5), when service of process is insufficient, courts have discretion to dismiss the action without prejudice or to quash service. Pursuant to Rule 4(h)(1)(A) of the Federal Rules of Civil Procedure, a corporation must be served in the manner prescribed by Rule 4(e)(1) for serving an individual, or alternatively, by delivering a copy of summons and complaint to an officer, managing or general agent, or any other agent authorized by appointment or law. Pinero v. Yam Margate, L.L.C., 825 F.Supp.2d 1264, 1266 (S.D. Fla. 2011); see also Smith v. Conner, No. 8:12-CV-52-T-30AEP, 2013 WL 268685, at *1 (M.D. Fla. Jan. 24, 2013) (citing Fla. Stat. §§ 48.031, 48.151; Lomax v. City of Miami Police Dep't, Case No. 12-23836-CIV-LENARD/O'SULLIVAN, 2012 U.S. Dist. LEXIS 171131, at *2 (S.D. Fla. Dec. 3, 2012)).
Upon consideration, the Court finds MLB Group's motion is due to be granted. It appears the individual served was not authorized to accept service. (Doc. #9, at 3 ¶4). And Cohen has not provided any rebuttal evidence. See generally Hoffman v. Three Thousand S. Ass'n, Inc., 318 So.2d 486, 486-87 (Fla. 4th DCA 1975). Moreover, the Court notes the 120 day service deadline has not lapsed. See generally Fed. R. Civ. P. 4(m). Therefore, although the September 4, 2014 service will be quashed, the Court will allow Cohen an additional amount of time to properly serve MLB Group.
Accordingly, it is now
ORDERED:
1. Defendant MLB Group, LLC's Motion to Quash Service of Process and Dismiss under Rule 12(b) for Insufficient Service of Process (Doc. #9) is GRANTED in part. The return of service, (Doc. #8), is hereby quashed.
2. Plaintiff Howard Cohen shall properly serve Defendant MLB Group, LLC no later than December 12, 2014.
3. Defendant MLB Group, LLC is directed to comply with the CM/ECF Administrative procedures going forward in this case. See M.D. Fla. Admin. Proc. for Elec. Filing in Civil and Criminal Cases ("Separate Attachment: Each separate exhibit must be filed as a separate attachment to the main document.").
DONE and ORDERED in Fort Myers, Florida this 29th day of October, 2014.
/s/_________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record