Opinion
Case No. 8:21-cv-0099-KKM-JSS
05-05-2021
BRITTANY WILLIAMS, ANGELINA WILLIAMS, KRISTINA WILLIAMS, AMIR JOHNSON, JAHZARA WILLIAMS, ASHANTI WILLIAMS, DAMON WILLIAMS, ANTOINE WILLIAMS, ANGELIA WHITFIELD, and ROBERT HILL, Plaintiffs, v. LOWES, Defendant.
ORDER
On April 14, 2021, this Court ordered Plaintiffs to show cause by April 28, 2021, why the action should not be dismissed for failure to file proof of sufficient service on the defendants within 90 days of the action being removed. (Doc. 10); see Fed. R. Civ. Proc. 4(m) ("If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time."); White v. Capio Partners, LLC, 1:15-cv-120, 2015 WL 5944943, at *2 (S.D. Ga. Oct. 13, 2015) ("[M]any courts in this Circuit have found that Rule 4(m)'s [90-day] period for service begins upon the day a case was removed to federal court."); see also 28 U.S.C. § 1448. Plaintiffs filed an untimely response on May 3, 2021, showing service of the state court action (not the new federal one) effected upon Reed Russell, counsel for Defendant.
Because Mr. Russell is not a registered agent of the Defendant or otherwise authorized to receive service of process, Plaintiffs' notice of execution service is insufficient. See Fed. R. Civ. P. 4(h)(1) (providing that a corporate entity must be served by following state law procedures for service or by "delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process"); § 48.062, Fla. Stat. (providing that process may be served against an LLC by serving its registered agent). Accordingly, this action is DISMISSED without prejudice for failure to serve the defendant under Federal Rule of Civil Procedure 4(m). The Clerk is directed to terminate all pending motions and close the case.
ORDERED in Tampa, Florida, on May 5, 2021.
/s/_________
Kathryn Kimball Mizelle
United States District Judge