While checking PACER this morning, something possessed me to go check the ASD Justice docket. Low and behold, there are 2 new documents listed, both entered onto the docket on February 24th. (These documents can be found on the ASD Files Website, Other ASD Cases) A quick read of the 2 documents makes me wonder just what ASD Justice thought when they filed this Affidavit of Service. Keep in mind, they have until March 7th to provide said proof of service or their case is dismissed.
Here’s what they filed, in part:
1. As to the defendant United States of America; in care of the United States Attorney for the Southern District of Florida, a Summons was duly issued by the Clerk of this Court, and service was made by the plaintiff Disner, pro se, leaving a complete copy with the receiving clerk at the US Attorney’s office in Miami, Florida on the 5th day of December, 2011.
2. As to the defendant Rust Consulting Inc., the plaintiff, Dwight Owen Schweitzer, pro se, on two separate occasions commencing on November 25th 2011 transmitted to , the Corporation Services Company as agent for service for the defendant Rust Consulting Inc, Waivers of Service forms with copies of the required return documents and self addressed stamped envelopes; neither of which were responded to by the defendant Rust Consulting Inc.
3. As to the defendant Rust Consulting lnc., the plaintiff, Dwight Owen Schweitzer pro se, thereupon obtained a Summons from the office the Clerk of the District Court for the Southern District of Florida, for the defendant Rust Consulting Inc., and duly transmitted it to Delaware Attorney Services for service along with a copy of the Complaint with exhibits attached, upon the said agent for service of the defendant Rust Consulting Inc-, and whose return of service, at an out of pocket cost to the plaintiffs of sixty dollars and no/100s cents ($60.00), is appended hereto and made a part hereof.
All this sounds well and good until you read Her honor’s replay, a second Order to provide Proof of Service. It was issued in response to the above, and Her Honor states (emphasis added):
THIS CAUSE comes before the Court sua sponte on review of the Affidavit of Service (“Service Affidavit”) [ECF No. 9], filed on February 24, 2012 by Plaintiff, Dwight Owen Schweitzer (“Mr. Schweitzer”).
The Service Affidavit asserts as to Defendant, the United States of America (“the United States”), that “a Summons was duly issued by the Clerk of this Court, and service was made by the plaintiff Disner, pro-se, leaving a complete copy with the receiving clerk at the US Attorney’s office in Miami, Florida on the 5th day of December, 2011.” (Service Affidavit ¶ 1). The Service Affidavit does not state, however, who Mr. Schweitzer refers to by the term, “receiving clerk,” such that the Court is informed whether Plaintiffs complied with Federal Rule of Civil Procedure 4(i) governing the proper procedure for serving the United States. Moreover, nowhere in the Service Affidavit does it state that a copy of the Complaint was also served on the United States in compliance with Federal Rule of Civil Procedure 4(i).
As to Defendant, Rust Consulting, Inc., the Service Affidavit asserts that the summons and a copy of the Complaint with attached exhibits were “duly transmitted to Delaware Attorney Services for service . . . upon the said agent for service of the defendant Rust Consulting Inc., and whose return of service . . . is appended hereto and made a part hereof.” (Service Affidavit ¶ 3). Contrary to this statement, proof of service upon Rust Consulting, Inc. was not filed. Indeed, no additional documents Are submitted with the Service Affidavit.
Plaintiffs are instructed to review Federal Rule of Civil Procedure 4(h) for the proper procedure for serving a corporation, and Rule 4(i) for the proper procedure for serving the United States. Furthermore, Federal Rule of Civil Procedure 4(m) requires service of summons and complaint to be perfected upon defendants within 120 days after the filing of the complaint. Plaintiffs filed this action on November 7, 2011. Accordingly, it is
ORDERED AND ADJUDGED that on or before March 7, 2012, Plaintiffs shall perfect service upon the Defendants or show cause why this action should not be dismissed for failure to perfect service of process. Failure to file proof of service or show good cause by March 7 will result in a dismissal of this case without prejudice and without further notice.
DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of February, 2012.
Personally, I find all of this somewhat amusing because I posted the proper procedures on this blog on February 3rd . And Dwight did his usual “knee jerk” reply, inferring I didn’t know how to read them. Seems I did, as the Judge has since pointed out to Mr. Schweitzer. My post on February 3rd covered these very rules on how to serve the US Government and a Domestic Corporation. I will be very interested in hearing what Mr. Schweitzer has to say about this new Order. After all, he keeps reminding me of his legal prowess and wide and varied legal experience. And yet, he missed the mark in this endeavor.
Perhaps I can read, after all.