INTELLIGENT MANAGEMENT SERVICES LLC LLC v. JAMES SCHULZ (2024)

ORDER OF DISMISSAL

This case is before the Court based on Defendant's motion to dismiss (Doc. 11) and Plaintiff's motion to file response out of time (Doc 14).¹ The motions are fully briefed and ripe for rulings. No hearing is needed to rule on the motions.

Background

Plaintiff filed this suit against Defendant in August 2023. The complaint alleges that Defendant contracted with Plaintiff in October 2019 to provide expert consulting services; that Plaintiff provided the agreed-upon services and submitted invoices to Defendant; and that Defendant did not pay the invoices.² Based on those allegations, the complaint asserts claims for breach of contract and unjust enrichment.

In November 2023, Plaintiff was directed to show cause why the case should not be dismissed under Fed. R. Civ. P. 4(m) for lack of service. See Doc. 4. Plaintiff responded by requesting additional time to effectuate service, and the Court granted Plaintiff an additional 45 days to serve Defendant or show cause why the case should not be dismissed for lack of service. See Doc. 6.

On the last day of the additional 45-day period, Plaintiff filed a response stating that it sent the complaint by certified mail to Defendant's address in Atlanta, Georgia, on January 16, 2024, and requesting additional time to file the “certified mail receipt.” Based on this response, the Court gave Plaintiff until February 2, 2024, to “file an appropriate proof of service on Defendant or show cause why this case should not be dismissed for lack of service.” Doc. 9.

Plaintiff did not file the certified mail receipt. Instead, on February 2, 2024, Plaintiff filed a “notice of service” along with a delivery confirmation document showing that a package was sent by FedEx Priority Overnight to Defendant in Atlanta on January 31, 2024, and was signed for by “M. Boss” on February 1, 2024. See Docs. 10, 10-1.

On February 21, 2024, Defendant filed a motion to dismiss arguing that the complaint should be dismissed for a variety of reasons, including Plaintiff's failure to effectuate timely and proper service. Defendant submitted an affidavit with the motion attesting that he has not been personally served with the complaint; that he has been residing in Hawaii since March 1, 2023; and that he has not lived at the address in Atlanta where Plaintiff sent the certified mail and the FedEx package for over three years. See Doc. 11-2.

Plaintiff did not respond to the motion to dismiss within the time prescribed by Local Rule 7.1(E), but two days after the response deadline, Plaintiff filed a motion to file response out of time.³ The motion explained that “[d]ue to an error in computation, plaintiff miscalculated the date by which a response needed to be filed,” and included Plaintiff's memorandum in opposition to the motion to dismiss as an attachment. See Doc. 14-3. Defendant filed a response in opposition to Plaintiff's motion, along with a memorandum addressing the merits of the arguments in Plaintiff's memorandum in opposition. See Doc. 15-1.

Analysis

The Court will separately analyze the two pending motions, starting with Plaintiff's motion to file a response out of time.

Motion to File Response Out of Time

“The Court has the authority to extend a deadline after it has expired, but the party seeking such an extension must establish ‘good cause’ for the extension and ‘excusable neglect’ for the failure to act before the deadline.” Allenback v. CoreLogic Credco, LLC, 2024 WL 977162, at *1 (N.D. Fla. Feb. 29, 2024) (citing Fed. R. Civ. P. 6(b)(1)(B)). “To determine if there was excusable neglect, the court considers the following factors: (1) the danger of prejudice to the nonmovant; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith.” Ashmore v. Sec'y, Dep't of Transp., 503 F. App'x 683, 685-86 (11th Cir. 2013) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).

Here, these factors weigh in favor of Plaintiff. Although the “error in computation” and the “miscalculat[ion]” of the response deadline were within the control of Plaintiff's counsel,⁴ there is no prejudice to Defendant if Plaintiff's late response to the motion to dismiss is accepted because Defendant's response to Plaintiff's motion to file response out of time addressed the merits of the arguments in Plaintiff's memorandum in opposition to the motion to dismiss. Moreover, accepting the late response will not adversely impact this proceeding because the response was only two days late and it will allow the Court to consider the motion to dismiss on the merits—rather than grant it by default under Local Rule 7.1(H).

Accordingly, for the reasons stated above, Plaintiff's motion to file response out of time will be granted.

Motion to Dismiss

Defendant argues that this case should be dismissed for a variety of reasons, including under Fed. R. Civ. P. 12(b)(5) for failure to effectuate timely and proper service of the complaint. The Court finds that issue dispositive, so it need not address the other grounds raised in the motion to dismiss.⁵

A plaintiff must properly serve process for the court to have personal jurisdiction over the defendant. See De Gazelle Grp., Inc. v. Tamaz Trading Establishment, 817 F.3d 747, 748 (11th Cir. 2016). The fact that the defendant may have actual notice of the suit does not relieve the plaintiff of the necessity of properly effecting service on the defendant. See Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (“A defendant's actual notice is not sufficient to cure defectively executed service.”).

An individual may be served within the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e). The procedures for effectuating service of process in Florida (where this Court is located) and Georgia (where service was purportedly made) are substantially the same as the procedures in Rule 4(e)(2). See Jackson v. Warden, FCC Coleman-USP, 259 F. App'x 181, 182 n.1 (11th Cir. 2007) (“Florida law provides for service by methods included in the Federal Rules.”); Melton v. Wiley, 262 F. App'x 921, 923 n.3 (11th Cir. 2008) (citing Ga. Code Ann. § 9-11-4(e)(7)).

The purported service in this case did not comply with Rule 4(e)(2). “Delivery” under paragraphs (e)(2)(A) and (e)(2)(C) requires personal service, not service by certified mail or FedEx. See Thorpe v. Dumas, 788 F. App'x 644, 648 (11th Cir. 2019) (“[C]ertified mail ․ does not satisfy Rule 4's service requirements.”). Moreover, “leaving” the summons and the complaint with the individual who signed for the FedEx delivery, “M. Boss,” was not effective service under paragraph (e)(2)(B) based on Defendant's unrebutted affidavit that he has not resided at the address where the delivery was made for over three years and because the record contains no information about the age, discretion, or residence of “M. Boss.” Finally, even if service of process was effective based on the FedEx delivery, the “notice of service” filed by Plaintiff was not proper “proof of service” because, under Fed. R. Civ. P. 4(l)(1), proof of service “must be by the server's affidavit.”

Where the plaintiff has not timely effectuated service or provided good cause for its failure to do so, the Court “must dismiss the action without prejudice.” Fed. R. Civ. P. 4(m) (emphasis added). Here, Plaintiff has had nearly 7 months to effectuate service of the complaint, but it has still not done so.

The Court did not overlook that Plaintiff requested a new summons for Defendant at an address in Hawaii ⁶ the week after the motion to dismiss was filed. See Doc. 13. However, Plaintiff did not contemporaneously request an extension of time to effectuate service, nor did it adequately explain why it was unable to effectuate proper service at that (or some other) address by the February 2, 2024, deadline established by the Court. Thus, while the Court recognizes that it has the discretion to extend the service deadline in response to Defendant's motion to dismiss, the Court finds no “good cause” to do so. Accordingly, Plaintiff's complaint is due to be dismissed under Rule 12(b)(5) for insufficient service of process.

“Dismissal on Rule 12(b)(5) grounds is ․ without prejudice,” Lau v. Klinger, 46 F. Supp. 2d 1377, 1383 (S.D. Ga. 1999) (emphasis added), and “does not constitute a judgment on the merits,” Abram v. Fulton Cnty. Gov't, 482 F. App'x 421, 424 (11th Cir. 2012). The Court did not overlook the possibility that the dismissal of this case for lack of service would be tantamount to a dismissal with prejudice if the statute of limitations had run, but that does not appear to be the case because Plaintiff's breach of contract claim did not accrue until some point after the alleged October 2019 contract date and the statute of limitations for breach of contract claims is five years in Florida, see § 95.11(2)(b), Fla. Stat., and six years in Georgia, see Ga. Code Ann. § 9-3-24.

The Court also did not overlook Defendant's argument that the case should be dismissed with prejudice under Fed. R. Civ. P. 41(b) based on Plaintiff's failure to comply with the order requiring Plaintiff to file a proof of service or show cause why the case should not be dismissed by February 2, 2024. However, Plaintiff's failure to comply with that order is tantamount to a failure to show cause why the case should not be dismissed under Rule 4(m) and a dismissal under that rule is “without prejudice.” See Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1340-41 (11th Cir. 2005).

Conclusion

In sum, for the reasons stated above, it is ORDERED that:

1. Plaintiff's motion to file response to motion to dismiss out of time (Doc. 14) is GRANTED, and the response (Doc. 14-2) and supporting memorandum (Doc. 14-3) are accepted.

2. Plaintiff's de facto amended motion to file response to motion to dismiss out of time (Doc. 16) is DENIED as moot.

3. Defendant's motion to dismiss (Doc. 11) is GRANTED, and this case is DISMISSED without prejudice under Fed. R. Civ. P. 4(m) and 12(b)(5).

4. The Clerk shall close the case file.

DONE and ORDERED this 13th day of March, 2024.

FOOTNOTES

1.   After this Order was prepared, but before it was posted to the docket by the Clerk, Plaintiff filed what amounts to (but was not styled as) an amended motion to file response out of time. See Doc. 16. That filing included a memorandum of law in support of the motion (Doc. 16-1) that, according to Plaintiff, was not attached to the original motion “[d]ue to a clerical error when filing.” The Court reviewed the memorandum of law, but it did not change any of the analysis in this Order. Thus, the de facto amended motion will be denied as moot.

2.   The complaint referred to the contract and the invoices, see Doc. 1 at ¶¶10, 13, but those documents were not attached to the complaint. Plaintiff was granted leave to file the contract and invoices under seal, see Doc. 3, but it never did so. Moreover, contrary to the allegations in the complaint, Plaintiff argues in its memorandum in opposition to the motion to dismiss that the agreement between the parties that it is seeking to enforce in this case is contained in “engagement letters” dated in March and August 2021. See Doc. 14-3 at 4.

3.   The motion did not indicate Defendant's position on the motion or include the certificate required by Local Rule 7.1(C), but the Court sees no reason to strike the motion on that basis at this point because Defendant has already responded to the motion.

4.   Defendant challenges the veracity of the explanation provided by Plaintiff's counsel, but the Court sees no reason not to accept that explanation at face value.

5.   Additionally, although not raised in the motion to dismiss, the Court notes that the complaint does not adequately allege subject-matter jurisdiction because it does not identify Plaintiff's members or their citizenships. See Hunt v. Nationstar Mortg., LLC, 684 F. App'x 938, 941-42 (11th Cir. 2017) (“For purposes of diversity jurisdiction, a limited liability company is ‘a citizen of any state of which a member of the company is a citizen.’ ” (quoting Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004))).

6.   Apparently, Defendant no longer resides at the Hawaii address listed in the new summons. See Doc. 15-1 at 10 (noting that the address is Defendant's “former address”).

T. KENT WETHERELL, II UNITED STATES DISTRICT JUDGE