FOX
v.
INDUSTRIAL COMMERCIAL ROOFING, INC.
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The court denied the plaintiff's motion for substitute service but granted a brief extension for service or to file a renewed motion.
Plaintiff attempted service on the defendant multiple times without success and sought to serve via email to attorneys or mail to the registered agent…
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This cause came on for consideration without oral argument on the following motion filed herein: MOTION: PLAINTIFF’S MOTION FOR SUBSTITUTE SERVICE (Doc. No. 7) FILED: October 19, 2022
THEREON it is ORDERED that the motion is DENIED without prejudice. Plaintiff moves for an Order permitting service on Defendant via email to its attorneys and mail to its registered agent’s home address. Doc. No. 7. Alternatively, Plaintiff requests an extension of time to effect substitute service on Defendant by serving the Florida Secretary of State. Id. In support, Plaintiff demonstrates that he has attempted service on Defendant on multiple occasions throughout July and August 2022 (14 attempts by 4 process servers), but has been unsuccessful, and that although Plaintiff’s counsel has been in contact with counsel for Defendant, Defendant has not executed a requested waiver of service of process. Id. at 2–6. See also Doc. Nos. 7-1 through 7-5. Thus, Plaintiff contends that Defendant is evading service. Doc. No. 7, at 5.
In support of his request for alternative methods of service, such as by email to defense counsel and mail to the registered agent, Plaintiff cites only to Fla. Stat. § 48.102. Id. at 7. But, § 48.102 does not become effective until January 2, 2023. See
Fla. Stat. § 48.102. Absent any further legal authority supporting the request, the Court declines to entertain it. As to Plaintiff’s alternative request for an extension of time to effectuate substitute service on the Florida Secretary of State, besides a passing reference to the request in the opening paragraph of the motion, see Doc. No. 7, at 1, Plaintiff fails to further address it. And, to the extent that Plaintiff is attempting to proceed pursuant to Fla. Stat. § 48.161 for substitute service on the Florida Secretary of State,
it does not appear that Plaintiff has complied with the prerequisites for that process. See generally Dixon v. Blanc, 796 F. App'x 684, 687 (11th Cir. 2020) (discussing requirements for substitute service on the Florida Secretary of State under Fla. Stat. § 48.161, and stating that “the plaintiff must allege in his complaint the ultimate facts bringing the defendant within the purview of the statute.” (emphasis added)). See also Kasby v. Upper Deck Bar & Grill, LLC, No. 6:11-cv-152-Orl-36GJK, 2012 WL
13141504, at *3–4 (M.D. Fla. Sept. 26, 2012). Given that the time for service under Federal Rule of Civil Procedure 4(m) has now elapsed, the Court will permit Plaintiff a brief extension of time to effect service on Defendant or to file a renewed motion demonstrating, with citation to legal authority, that substitute service is proper. Accordingly, it is ORDERED as follows: 1. Plaintiff’s Motion for Substitute Service (Doc. No. 7) is DENIED
without prejudice. 2. Plaintiff shall have up to and including December 12, 2022 to file proof of service on Defendant. 3. Alternatively, Plaintiff may renew his motion for substitute service on
or before November 21, 2022, which must include a memorandum of legal authority demonstrating that substitute service on Defendant is proper. DONE and ORDERED in Orlando, Florida on November 10, 2022.
ayn [...]
LESLIE AN PRICE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to: Counsel of Record Unrepresented Parties
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