Opinion
Case No.: 2:19-CV-02213-JCM-DJA
03-27-2020
Dennis R. Miller, an individual, and Omni Block, a Nevada Corporation, Plaintiff, v. Edward M. Weinmann, an individual, and Advanced Masonry Consulting Inc., a Florida Corporation, Defendants.
ROB L. PHILLIPS Nevada Bar No. 8225 Rob.phillips@fisherbroyles.com FISHERBROYLES, LLP 5670 Wilshire Blvd. Suite 1800 Los Angeles, California 90036 Telephone: (702) 518-1239 Counsel for Plaintiffs
ROB L. PHILLIPS
Nevada Bar No. 8225
Rob.phillips@fisherbroyles.com
FISHERBROYLES, LLP
5670 Wilshire Blvd.
Suite 1800
Los Angeles, California 90036
Telephone: (702) 518-1239
Counsel for Plaintiffs
EXPARTE MOTION TO EXTEND TIME TO SERVE DEFENDANTS; AND PROPOSED ORDER
Dennis R. Miller ("Miller"), an individual, and Omni Block (collectively "Plaintiffs") file this ExParte Motion for Additional Time to Serve the Complaint in this action on Defendants Edward M. Weinmann ("Weinmann"), an individual, and Advanced Masonry Consulting Inc. ("Advanced Masonry") ( collectively "Defendants").
BACKGROUND
Plaintiffs filed their Complaint in this action on December 23, 2019. (Dkt. No. 1). The parties attempted to resolve the matter for approximately seventy (70) days through early March. Unfortunately, the settlement discussions did not result in a resolution. Consequently, on or about March 3, 2020, Plaintiffs, through counsel, requested that ABC Legal, a process service company located in Plantation, Florida serve Defendants. Service attempts have been made at Mr. Wienmann's last known address, his girlfriend's address and his employer's address, all to no avail although the girlfriend does acknowledge she knows Mr. Weinmann. (see, Exhibit A). Attempts to serve Advanced Masonry have also been attempted, again to no avail, at the address listed in its LLC filing with the Florida Secretary of State (see, Exhibit B). Unfortunately, Defendant Advanced Masonry is not adhering to Florida Statue § 48.091(2) whereby "[E]very corporation shall keep the registered office open from 10 a.m. to 12 noon each day except Saturdays, Sundays, and legal holidays, and shall keep one or more registered agents on whom process may be served at the office during these hours." Indeed, the address provided to the Florida Secretary of State as the registered agent address (1061 NW 78TH TERRACE, PLANTATION, FL 33322) for Defendant Advanced Masonry belongs to a residence not a business and the residents have nothing to do with Defendant Advanced Masonry.
It is not known whether or not Defendants are intentionally evading service but efforts will need to continue to effectuate service. Additionally, the current COVID-19 outbreak is sure to cause delay with the continued efforts to effectuate service. Accordingly, Plaintiffs request an additional sixty (60) days to serve Defendants the Complaint and Summons in this matter.
MEMORANDUM OF POINTS AND AUTHORITIES
Applicable Federal Law
Fed. R. Civ. Pro. Rule 4(m) reads "[I]f 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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." In this instance, the 90-day period to serve Defendants expired on March 23, 2020 and Defendants, as set forth above, have yet to be served. Because Defendants are domiciled in Florida, service is proper by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made..." Fed. R. Civ. Pro. Rule 4(e) (as incorporated by reference into Fed. R. Civ. Pro. Rule 4(h)). The Florida Rules
Plaintiffs, through ABC Legal, are continuing efforts to serve Defendants pursuant to Fla. R. Cic. Pro. §1.070(b) which states, in part, "[S]ervice of process may be made by an officer authorized by law to serve process, but the court may appoint any competent person not interested in the action to serve the process." Defendants do not have a permanent presence in Nevada where they can be served directly so service in Florida is the only available option.
At this stage, ABC Legal is planning on a stakeout at Mr. Weinmann's girlfriend's house so we expect service to happen soon and certainly within the extension of sixty (60) days requested herein.
CONCLUSION
Based on the foregoing, Plaintiffs contend that good cause supports an extension of sixty (60) days from March 23, 2020 to May 22, 2020 serve Defendants the Complaint and Summons in this action.
DATED this 25th day of March 2020.
Respectfully submitted,
FISHERBROYLES, LLP
/s/ Rob L. Phillips
ROB L. PHILLIPS, ESQ.
Nevada Bar No. 8225
5670 Wilshire Blvd., Suite 1800
Los Angeles, CA 90036
Telephone: (702) 518-1239
Counsel for Plaintiffs
IT IS SO ORDERED
DATED: March 27, 2020 /s/_________
Daniel J. Albregts
United State Magistrate Judge
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EXHIBIT A
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