Opinion
CASE NO. 08-20447-CIV-LENARD/GARBER.
October 10, 2008
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court by Order of Reference from U.S. District Judge Joan A. Lenard. Pursuant to such reference, the Court has received defendant GeoSentric OYJ's Motion to Dismiss [DE 10], plaintiff Brightstar corporation's Response [DE 12], the reply [DE 20], and held a hearing on the matter. After examining the record and hearing arguments by each side, the Court respectfully recommends (1) that defendant GeoSentric's Motion to Dismiss be GRANTED and (2) that Brightstar's complaint be dismissed without prejudice.
On June 19, 2008, Judge Lenard issued an order, which states "[p]laintiff is provided until and including July 21, 2008 to execute service upon Defendant in this matter. Failure to do soshall result in dismissal of this action." [DE 4] (Emphasis supplied) Thus, the only question before this Court is did Brightstar execute service on GeoSentric by July 21, 2008. The answer is no.
Florida Statute § 48.161 sets out the method for substitute service on a nonresident. The section requires the "defendant's return receipt and the affidavit of the plaintiff or his or her attorney of compliance .^.^. be filed on or before the return day of the process or within such time as the court allows." Quite simply, this was not done by July 21, 2008. Accordingly, the Court
RECOMMENDS that GeoSentric's Motion to Dismiss [DE 10] be GRANTED and that Brightstar's complaint be DISMISSED without prejudice.
The parties have ten (10) days from the date of this Report and Recommendation within which to file written objections, if any, with U.S. District Judge Joan A. Lenard. See 28 U.S.C. § 636 (1991). Failure to file timely objections may bar the parties from attacking on appeal the factual findings contained herein.LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988), cert. denied, 488 U.S. 958 (1988).
RESPECTFULLY SUBMITTED in Chambers at Miami, Florida.