FELTON
v.
WINTER PARK POLICE DEPARTMENT
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The court adopted the Magistrate Judge's recommendation, granting the motion to quash service on the police department and in DiCarlo's official capacity, while denying the motion regarding service on DiCarlo individually.
Plaintiff sued the Winter Park Police Department and Detective DiCarlo for malicious prosecution and negligence. Defendants moved to quash service. A …
The full statement of facts, procedural history, and disposition for this case are member content.
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In this malicious prosecution and negligence case, Plaintiff sued the Winter Park Police Department (“WPPD”) and police detective Amy DiCarlo in her official and individual capacities. (See Doc. 1-1.) Defendants moved to quash service. (Doc. 5 (“Motion”).) On referral, U.S. Magistrate Judge Celeste F. Bremer recommends granting the Motion in part. (Doc. 19 (“R&R”).) First, as to the parties themselves, Judge Bremer recommends that the WPPD should be dismissed because it is not amenable to suit as a municipal department; the City of Winter Park itself is the proper party. (See Doc. 19, pp. 2– 3); Williams v. Mia.-Dade Police Dep’t, 297 F. App’x 941, 945 (11th Cir. 2008). As to DiCarlo, as a municipal officer, the suit against her in her official capacity is essentially a suit against the City and must be served accordingly. (Doc. 19, pp. 5– 6 & n.3); see Ludaway v. City of Jacksonville, 245 F. App’x 949, 951 (11th Cir. 2007). Turning to service, Judge Bremer recommends finding that service on the municipal entity (and thus DiCarlo in her official capacity) was improper under Federal Rule of Civil Procedure 4(j)(2) because Plaintiff did not serve the municipality’s CEO or another individual authorized to accept service under the applicable statute. (See Doc. 19, pp. 3–7.) As to DiCarlo individually, Judge Bremer recommends finding that service was proper because, even though someone else accepted service on her behalf, DiCarlo failed to carry her burden of showing that the recipient was not authorized to accept service. (See id. at 4–5.)
The parties did not object and the deadline has passed, so the Court examines the R&R for clear error only. See Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). Finding none, the R&R is due to be adopted in its entirety.1
Accordingly, it is ORDERED AND ADJUDGED: 1. The R&R (Doc. 19) is ADOPTED, CONFIRMED, and made a part of this Order in its entirety.
2. Defendants’ Motion (Doc. 5) is GRANTED IN PART AND DENIED IN PART: a. The Motion is GRANTED insofar as service on DiCarlo
individually was proper. c. The Motion is GRANTED insofar as the claims against the Winter Park Police Department are DISMISSED
WITH PREJUDICE because it is not amenable to suit. The Clerk is DIRECTED to terminate the Winter Park Police Department as a party to the case. d. The Motion is GRANTED insofar as the remaining
claims in Plaintiff’s Complaint (Doc. 1-1) are DISMISSED WITHOUT PREJUDICE. By Wednesday, October 5, 2022, Plaintiff may file an amended complaint
against the City2 and DiCarlo in her individual capacity3 correcting the deficiencies identified in the R&R (Doc. 19). Failure to timely file will result in this action
being closed without further notice.
a ROY B. DALTON JR’ United States District Judge