Opinion
CASE NO. 12-22217-CIV-LENARD/O'SULLIVAN
12-14-2012
JOSE DAVID MELCHOR-GARCIA, OSCAR MODESTO CASTRO MARQUEZ, QUI LAN LIN, QUILING LIANG, CHIN-CHUEH CHANG, and all other similarly situated under 29 U.S.C. 216(B), Plaintiffs, v. DONG YING CORP. d/b/a SHINJU JAPANESE BUFFET, DONG LE CORPORATION d/b/a SHINJU JAPANESE BUFFET, HUI LI, and YONGQUI CHEN, Defendants.
ORDER
THIS MATTER is before the Court on the Defendants' Cross-Motion to Dismiss Action by Reason of Insufficient Service of Process (No Bona Fide Attempt to Serve Correctly on Any of the Four Defendants, All of Whom Became Aware of this Action only by Chance) (DE # 29, 8/22/12). This matter was referred to the undersigned by the Honorable Joan A. Lenard, United States District Judge for the Southern District of Florida, pursuant to 28 U.S.C. § 636(b). Having reviewed the applicable filings and the law, the undersigned enters the following Order.
Two (2) of the four (4) defendants settled this matter with the plaintiffs. Accordingly, the Defendants' Cross-Motion to Dismiss Action by Reason of Insufficient Service of Process (No Bona Fide Attempt to Serve Correctly on Any of the Four Defendants, All of Whom Became Aware of this Action only by Chance) (DE # 29, 8/22/12) only remains pending as to the defendants Dong Ying Corp. and Hui Li.
BACKGROUND
The plaintiffs filed the Complaint in this matter on June 13, 2012, (DE # 1, 6/13/12). The Cross-Motion to Dismiss Action by Reason of Insufficient Service of Process (No Bona Fide Attempt to Serve Correctly on Any of the Four Defendants, All of Whom Became Aware of this Action only by Chance) (DE # 29, 8/22/12) was filed August 22, 2012. The response to the Cross-Motion to Dismiss was filed September 7, 2012 (DE # 32, 9/7/12).
ANALYSIS
In the Cross-Motion to Dismiss Action by Reason of Insufficient Service of Process (No Bona Fide Attempt to Serve Correctly on Any of the Four Defendants, All of Whom Became Aware of this Action only by Chance) (DE # 29, 8/22/12), the defendants allege the service of process was deficient and, accordingly, move to dismiss. Under the law, it is the plaintiff's burden to show proper service of the complaint. See Martin v. Salvatierra, 233 F.R.D. 630, 631 (S.D.Fla.2005). Just because a defendant is aware of the complaint does not relieve a plaintiff of the burden of effectuating proper service on the defendant. "[T]he service requirement is not satisfied merely because the defendant is aware that he has been named in a lawsuit or has received a copy of the summons and the complaint." United States v. Ligas, 549 F.3d 497, 500 (7th Cir. 2008). When the method of service is challenged, it is the plaintiff's burden to prove, by a preponderance of the evidence, that jurisdiction was, in fact, obtained over the defendant by timely and proper service of the summons and complaint. Old Republic Insurance Company v. Pacific Financial Services of America, Inc., ("Old Republic") 301 F.3d 54, 57 (2d Cir.2002) (citing NYCTL 1997-1 Trust v. Nillas, 288 A.D.2d 279, 732 N.Y.S.2d 872, 873 (2d Dep't.2001)). The Cross-Motion to Dismiss Action by Reason of Insufficient Service of Process (No Bona Fide Attempt to Serve Correctly on Any of the Four Defendants, All of Whom Became Aware of this Action only by Chance) (DE # 29, 8/22/12) addresses the deficiency of the service of process, not the timeliness. The undersigned finds that the plaintiff has not established proper service of process.
On November 20, 2012, the defendants Dong Ying Corp. and Hui Li filed a Motion to Dismiss by Reason of Failure to Serve the Summons and Complaint within the 120-Period (DE # 43, 11/20/12). The Motion filed on November 20, 2012, acknowledges service, but questions the timeliness of the service. Accordingly, the undersigned finds that the initial service on the defendants was not proper and denies the Defendants' Cross-Motion to Dismiss Action by Reason of Insufficient Service of Process (No Bona Fide Attempt to Serve Correctly on Any of the Four Defendants, All of Whom Became Aware of this Action only by Chance) (DE # 29, 8/22/12) as moot.
The Motion to Dismiss filed on November 20, 2012, (DE # 43) is not ripe.
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RULING
For the foregoing reasons, it is
ORDERED AND ADJUDGED that the Defendants' Cross-Motion to Dismiss Action by Reason of Insufficient Service of Process (No Bona Fide Attempt to Serve Correctly on Any of the Four Defendants, All of Whom Became Aware of this Action only by Chance) (DE # 29, 8/22/12) is DENIED as moot.
DONE AND ORDERED in Chambers, at the United States Courthouse, Miami, Florida this 14th day of December, 2012.
_________________________
JOHN J. O'SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
U.S. District Judge Lenard
All counsel of record