Knights Roofing and Restoration, Inc. v. Arch Specialty Insurance Company

• Court: District Court, M.D. Florida
• Decided: February 24, 2025
• Docket: 6:24-cv-02219
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

KNIGHTS ROOFING AND RESTORATION, INC.,

Plaintiff,

v. Case No: 6:24-cv-2219-ACC-LHP

ARCH SPECIALTY INSURANCE COMPANY,

Defendant

ORDER This cause comes before the Court on review of Defendant, Arch Specialty Insurance Company’s Second Renewed Motion to Quash Service of Process and in the Alternative, Motion to Dismiss Case for Failure to Timely Serve Process and Supporting Memorandum of Law. Doc. No. 10. The motion is premised on a claim that a proper summons never issued before the matter was removed from state court, that an improper/non-issued summons was served on Defendant, and even if the summons were somehow proper, Defendant was not timely served. Id.1

1 Plaintiff instituted this action in state court on July 3, 2024, but the state court docket does not reflect issuance of a summons. Doc. No. 1-2. Defendant removed the matter to this Court on December 5, 2024, pursuant to 28 U.S.C. §§ 1441 and 1446. Doc. Plaintiff failed to timely respond to Defendant’s motion. See Local Rule 3.01(c). Accordingly, the Court issued an Order to Show Cause directing Plaintiff to show cause why Defendant’s motion should not be granted as unopposed,

service should not be quashed, and the case dismissed. Doc. No. 17. Plaintiff timely responded to the Order to Show Cause, but does not dispute that service of process was invalid. Doc. No. 19. Instead, Plaintiff requests an additional period of time to effect proper service on Defendant. Id. at 2–3.

Upon consideration, given that it is undisputed that service of process has not been properly effected, Defendant’s Motion (Doc. No. 10) is GRANTED in part to the extent that service is hereby QUASHED. See Omni Cap. Int’l Ltd. v. Rudolf

Wolff & Co., Ltd., 484 U.S. 97, 104 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”); see also Yaniga v. Fla. Dep’t of Transp., No. 8:11-cv- 1371- T-23TBM, 2011 WL 6338910, at *1 (M.D. Fla. Dec. 19, 2011) (citations omitted)

(without proper service of process, “a district court lacks both personal jurisdiction over a defendant and power to render a judgment”). Nonetheless, Defendant’s Motion (Doc. No. 10) will be DENIED in all other respects.

No. 1. When service of process is shown to be insufficient, “Fed. R. Civ. P. 12(b)(5) provides district courts with the authority to either dismiss the complaint or to quash the service and require the plaintiff to re-attempt service of process.” Smith

v. Conner, No. 8:12-cv-52-T-30AEP, 2013 WL 268685, at *2 (M.D. Fla. Jan. 24, 2013) (citations omitted). “[W]hen there is no prejudice and service can be accomplished, courts generally will quash the insufficient service and allow the plaintiff to perfect service.” Id. (alteration in original, citations omitted); see also

Allah El v. Avesta Homes, No. 8:11-cv-2192-T-33TGW, 2012 WL 515912, at *4 (M.D. Fla. Feb. 16, 2012) (“[W]hen a court finds that service is insufficient but curable, it generally should quash the service and give the plaintiff an opportunity to re-serve

the defendant.” (quoting Carthen v. Baptist S. Med. Ctr., No. 2:10–cv–281–WKW, 2011 WL 855279, at *4 (M.D. Ala. Feb. 23, 2011))). Given Plaintiff’s request for an extension of time for service, Doc. No. 19, receipt of actual notice by Defendant and the relative infancy of the case, Doc. No.

1, that no prejudice has been argued by Defendant, Doc. No. 10, and because it is possible that defects with service can be rectified, the Court finds a limited extension of time to effect service in compliance with governing law appropriate. See

generally Lepone-Dempsey v. Carroll Cty. Comm’rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (“Even in the absence of good cause, a district court has the discretion to extend the time for service of process.”); Sabo v. Flagler Hosp., Inc., No. 3:17-cv-755-J-39PDB, 2018 WL 11485771, at *2 (M.D. Fla. July 26, 2018), report and recommendation adopted, 2018 WL 11485768 (M.D. Fla. Sept. 19, 2018) (citations omitted) (explaining that even if there is no good cause for failing to timely effect service, courts consider whether

an extension of time for service is warranted by considering circumstances such as the length and reason for the delay, relative hardship of the parties, and receipt of actual notice, among other considerations). Accordingly, it is ORDERED that Plaintiff shall cause proper service to be effected on Defendant within thirty (30) days of the date of this Order. By this

same thirty (30) day deadline, Plaintiff shall also file proof of proper service with the Court. DONE and ORDERED in Orlando, Florida on February 24, 2025.

LESLIE NOFFIIAN PRICE UNITED STATES MAGISTRATE JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties

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