Opinion
Case No. 6:07-cv-56-ORL-KRS.
June 20, 2007
ORDER
This cause came on for consideration without oral argument on the following motion filed herein: MOTION: MOTION TO QUASH SERVICE OF PROCESS AND MOTION TO DISMISS (Doc. No. 6) FILED: January 29, 2007 THEREON ORDERED GRANTED DENIED
____________________________________________ it is that the motion is in part and in part. In the present motion, Defendant County of Volusia (County) seeks to quash service of process under Federal Rule of Civil Procedure 12(b)(5), and moves to dismiss Plaintiffs John E. Casaburro's and Paul Joseph Stich's complaint.Federal Rule of Civil Procedure 4(j)(2) provides that:
Service upon a state, municipal corporation, or other governmental organization subject to suit shall be effected by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant.
Florida Statute § 48.111 provides the relevant rules for service of process upon a county within the state of Florida. Under Florida Statute § 48.111(1):
Process against any municipal corporation, agency, broad, or commission, department, or subdivision of the state or any county which has a governing board, council, or commission or which is a body corporate shall be served:
(a) On the president, mayor, chair, or other head thereof; and in his or her absence;
(b) On the vice president, vice mayor, or vice chair, or in the absence of all of the above;
(c) On any member of the governing board, council, or commission.
According to the plaintiffs' summons, doc. no. 18-3 at 1, and the Volusia County Sheriff's Department's certificate of service, doc. no. 18-3 at 2, the summons and complaint were served on Margie Helton, administrative coordinator for Volusia County Attorney Daniel D. Eckert, Esq., on January 12, 2007. The plaintiffs have not provided any indication that the complaint and summons were served on anyone other than Mr. Eckert.
In serving Mr. Eckert, the plaintiffs have failed to satisfy the requirements of Federal Rule of Civil Procedure 4(j)(2). The only information provided indicates that Mr. Eckert is the County Attorney, which is not the "chief executive officer" of Volusia County. Rather than serving the "chief executive officer" of Volusia County, the plaintiffs had the option of following Florida Statute § 48.111(1). However, it also does not appear that the Volusia County Attorney is the chair, vice chair, or member of the governing board of Volusia County. Accordingly, the plaintiffs have failed to properly serve the County.
It is ORDERED that the County's motion to quash service of process is GRANTED, and the process and its service is quashed. The County's motion to dismiss is DENIED without prejudice and may be renewed after the County is properly served.
It is further ORDERED that the plaintiffs shall have until July 23, 2007 to effect proper service of process on the defendants and file proof of such service with the Court pursuant to Federal Rule of Civil Procedure 4(l). The plaintiffs have "the burden of demonstrating that service of process [is] proper." Lazaro v. U.S. Dept. of Agric., 186 F. Supp. 2d 1203, 1217 (M.D. Fla. 2001); see also Aetna Bus. Credit, Inc. v. Universal Decor Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981). Failure to perfect service of process as required by this Order may result in dismissal of this case without further notice. See Fed.R.Civ.P. 4(m), 16(f); M.D. Fla. L.R. 3.10.
DONE and ORDERED in Orlando, Florida.