PETERSEN
v.
CHUZE FITNESS
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The District Court denied Defendant's Motion to Strike Plaintiff's Second Amended Complaint without prejudice because Defendant failed to properly serve the motion on Plaintiff in accordance with Federal Rules of Civil Procedure Rule 5(b). The Court found the certificate of service insufficient and directed Defendant to file a renewed motion with proper service by July 17, 2025.
Defendant did not properly serve the Motion because the certificate of service was insufficient to demonstrate compliance with Fed. R. Civ. P. 5(b), as it failed to confirm actual service on Plaintiff who lacks CM/ECF access and has no indication that mailing occurred.
[1] A motion is insufficient to demonstrate proper service when the certificate of service does not confirm compliance with Federal Rule of Civil Procedure 5(b) and any state…
[2] A motion that fails to demonstrate proper service under Federal Rule of Civil Procedure 5(b) will be denied without prejudice.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the Court cannot determine that service was proper in accordance with Fed. R. Civ. P. 5(b). Accordingly, the Motion is denied without prejudice.”
The Court's core ruling that improper service requires denial of the motion without prejudice, allowing for refiling.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiff Petersen filed a Second Amended Complaint in this civil action against Chuze Fitness. Defendant filed a Motion to Strike the complaint but s…
The full statement of facts, procedural history, and disposition for this case are member content.
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THIS CAUSE is before the Court upon Defendant's Motion to Strike Plaintiff's Second Amended Complaint (“Motion”). Doc. 18.
Defendant was required to serve the Motion on Plaintiff. See Fed. R. Civ. P. 5(a)(1)(D). The Motion includes a certificate of service stating that a copy of the Motion was filed using CM/ECF. Doc. 18 at 4. However, Plaintiff does not have CM/ECF access or receive automatic service via CM/ECF. The Motion also states (albeit not in the certificate of service) that Defendant “will send a copy of this Motion via U.S. Mail to Plaintiff's attention[,]" but it gives no indication if or when any service by mail occurred. Id. Such is insufficient to demonstrate that Plaintiff has been properly served with the Motion.
In short, the Court cannot determine that service was proper in accordance with Fed. R. Civ. P. 5(b). Accordingly, the Motion is denied without prejudice. See Infinity Cap. Income Fund, LLC v. Nguyen, No. 6:24-cv-1869-JSS-LHP, 2024 WL 4556122, at
*1 (M.D. Fla. Oct. 23, 2024) (denying motion without prejudice and noting ambiguous certificate of service). Any renewed motion must be filed on or before July 17, 2025, and be accompanied by a proper certificate of service.
Defendant notes that “it appears Plaintiff is incarcerated at 500 E. Adams St., Duval County Jail, Jacksonville, FL 32202[,]" but Plaintiff has not updated his address with this Court. Id. at 3. In an abundance of caution, the Court will direct service of this order and another order entered contemporaneously herewith to Plaintiff at the address of record in this case and the jail address. Plaintiff is directed, however, to keep the Court apprised of his current address and cautioned that his failure to do so may lead to a dismissal of this action for lack of prosecution.
DONE AND ORDERED in Jacksonville, Florida, on June 27, 2025.
Samuel J. Horovitz United States Magistrate Judge
Copies to:
Counsel of Record
Pro Se Plaintiff 4580 Muscadine Court Jacksonville, FL 32210 and - DC Number Q92618 500 E. Adams St. Duval County Jail Jacksonville, FL 32202
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Petersen v. Chuze Fitness, 2024 WL 4556122 (M.D. Fla. 2025)…rved with the Motion. In short, the Court cannot determine that service was proper in accordance with Fed. R. Civ. P. 5(b). Accordingly, the Motion is denied without prejudice. See Infinity Cap. Income Fund, LLC v. Nguyen, No. 6:24-cv-1869-JSS-LHP, 2024 WL 4556122, at ---PAGE 2--- Case 3:24-cv-01363-BJD-SJH Document 19 Filed 06/27/25 Page 2 of 2 PageID 134 *1 (M.D. Fla. Oct. 23, 2024) (denying motion without prejudice and noting ambiguous certificate of service). Any renewed motion must be filed on or befor…
Authorities Cited
- Petersen v. Chuze Fitness, 2024 WL 4556122 (M.D. Fla. 2025)