Case 4:97-cv-10092-JCP Document 1 Entered on FLSD Docket 10/01/1997 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION

97-10092

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

KEY LARGO GROUP, INC., f/k/a

)

OCEAN REEF CLUB, INC.,

)

a not for profit corporation, and f/k/a

)

OCEAN REEF CLUB, INC.,

)

a for profit a corporation,

)

)

)

)

Defendant.

)

Civil A£1¥.~ FAJNE

.Ml\..GISTRATE JUDG.b.

fi'I_'UNAC

COMPLAINT

..,

(/)() . r-~.
orn:
. ;:lG

\0
~
c:n

1"?'1
0

O:JO:·

JURY TRIAl."T1,~ '

DEMAND

r-(:1
>~-

Lt-r"ul
w

co -<

.0.,

:I r-v- i_
;-..·
:J: (') i

l:II:
~ 0

--i

\.D 0

0

NATURE OF THE ACTION This is a class action suit under the Age Discrimination in Employment Act of 1967, as amended (the "ADEA''), to correct unlawful employment practices on the basis of age and to provide appropriate relief to Carol Bolton, Linda Pou, Glenda Register and other similarly situated individuals. As alleged with greater particularity below in paragraphs 7 to 11 below, the Equal Employment Opportunity Commission (the "Commission"), alleges that the Key Largo Group, Inc., f/k/a as the Ocean Reef Club, Inc., a not for profit corporation, and f/k/a Ocean Reef Club, Inc., a for profit corporation (the Defendant), violated the ADEA when they discharged Carol Bolton, then age 47, Linda Pou, then age 46, Glenda Register, then age 46, and discharged, constructively discharged and/or laid off other similarly situated individuals from their employment on the basis

Case 4:97-cv-10092-JCP Document 1 Entered on FLSD Docket 10/01/1997 Page 2 of 8
of their respective ages and replaced them with younger individuals to fill the vacated positions. Additionally, the Commission alleges that the Defendants violated Section 7(a) ofthe ADEA, by failing to keep necessary records in accordance with the Act.
JURISDICTION AND VENUE 1. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 7(b) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S. C. § 626(b) (the "ADEA") which incorporates by reference Section 16(c) of the Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. 216 (c). 2. The employment practices alleged to be unlawful were committed within the jurisdiction ofthe United States District Court for the Southern District of Florida, Miami Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 ofReorganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705. 4. At all relevant times, the Defendant, Key Largo Group, Inc. f/k/a Ocean Reef Club, Inc., a not for profit corporation and f/k/al Ocean Reef Club, Inc., a for profit corporation (the "Employer"), has continuously been doing business in the State of Florida and in the City of Key Largo, and has continuously had at ieasi 20 empioyees. 5. At all relevant times, the Defendant Employer has continuously been an employer
2

Case 4:97-cv-10092-JCP Document 1 Entered on FLSD Docket 10/01/1997 Page 3 of 8
engaged in an industry affecting commerce within the meaning of Sections 11 (b), (g) and (h) of the ADEA, 29 U.S.C. §§ 630(b), (g) and (h).
CONCILIATION 6. Prior to the institution of this lawsuit, the Commission's representatives attempted to eliminate the unlawful employment practices alleged below and to effect voluntary compliance with the ADEA through informal methods of conciliation, conferences and persuasion within the meaning of Section 7(b) ofthe ADEA, 29 U.S.C. § 626(b).
STATEMENT OF CLAIMS 7. Since at least November 1991, the Defendant Employer has engaged in unlawful employment practices at their Key Largo, Florida, facility in violation of Section 4 (a) of the ADEA, 29 U.S.C. Section 623 (a) by terminating, constructively discharging and/or laying off individuals because of their age. 8. (a) On or about November 1991, Carol Bolton was discharged from the position
of Secretary/Receptionist, by the Defendant Employer because of her age, then 47. (b) On or about May 20, 1992, Linda Pou was discharged from the position of Commissary Manager, by the Defendant Employer because of her age, then 46. (c) On or about April 15, 1992, Glenda Register was discharged from the position ofDirector ofHuman Resources, by the Defendant Employer because of her age, then 46. (d) Since at least November, 1991, Defendant has engaged in terminating,
3

Case 4:97-cv-10092-JCP Document 1 Entered on FLSD Docket 10/01/1997 Page 4 of 8
constructively discharging and/or laying off other similarly situated individuals because of their age. 9. Since at least November, 1991, the Defendant has failed to maintain copies of all of the personnel files of their employees and other relevant documents to this action as required pursuant to Section 7(a) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Section 626(a), by failing to make and preserve records required by the Commission necessary to the Commission's administration of the ADEA. 10. The effect of the practices complained of in paragraphs 7 to 9 above, has been to deprive Carol Bolton, Linda Pou, Glenda Register and other similarly situated individuals who were terminated, constructively discharged and/or laid off because of their age, including all of the individuals named on Exhibit A attached hereto, of equal employment opportunities and otherwise adversely affect their status as employees because of their age. 11. The unlawful employment practices complained of in paragraphs 7-10 above were and are willful within the meaning of Section 7(b) ofthe ADEA, 29 U.S.C. § 626(b).
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A Grant a permanent injunction enjoining the Defendant Employer, their officers, successors, assigns and all persons in active concert or participation with it, from engaging in policies and/or practices to terminate, constructively discharge and/or lay off individuals because they are 40 years of age and older, or engaging in any other employment pradi~.:es which discriminate on the basis of age against individuals 40 years of age and older.
4

Case 4:97-cv-10092-JCP Document 1 Entered on FLSD Docket 10/01/1997 Page 5 of 8
B. Order the Defendant Employer to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals who are at least 40 years of age, and which eradicate the effects of its unlawful employment practices. C. Grant a judgment requiring the Defendant Employer to pay appropriate back wages m an amount to be determined at trial and an equal sum as liquidated damages, and prejudgement interest to individuals whose wages are being unlawfully withheld as a result of the acts complained of above, including but not limited to, the termination, constructive discharge and/or lay offs of Carol Bolton, Linda Pou, Glenda Register and those individuals named on Exhibit A, attached hereto. D. Order the Defendant Employer to make whole all individuals adversely affected by the unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of its unlawful practices, including but not limited to, reinstatement and/or front pay to the individuals listed on Exhibit A. E. Order the Defendant Employer to make and preserve records required by the Commission pursuant to Section 7(a) ofthe ADEA, 29 U.S.C.Section 626(a). F. Grant such further relief as the Court deems necessary and proper in the public interest. G. Award the Commission its costs ofthis action.
JURY TRIAL DEMAND The Commission requests a jury trial on ali questions of fact raised by its complaint.
5

Case 4:97-cv-10092-JCP Document 1 Entered on FLSD Docket 10/01/1997 Page 6 of 8
Respectfully Submitted, C. GREGORY STEWART General Counsel
J. RAY TERRY Deputy General Counsel
EVEG. LOWE Acting Regional Attorney
~~~ ' ~/~ ~ad/ );)
PAMELA PRIDE-CHAVIES Senior Trial Attorney Florida Bar No. 497010
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION MIAMI DISTRICT OFFICE One Biscayne Tower 2 South Biscayne Boulevard Suite 2700 Miami, FL. 33131 (305) 530-6002
6

Case 4:97-cv-10092-JCP Document 1 Entered on FLSD Docket 10/01/1997 Page 7 of 8

Barbara Epperson Paul Bergeron Diana McPherson Daryl Knapp Leo Reymers Ana Williams Roberta Richcreek Kathy Kendall Rene Rodriguez George Henderson Judi Callahan Ervin Neitzel Pearlie Curry Frank Telerico Carol Bolton Linda Pou Glenda Register

EXHIBIT A

·11ther papir0<16Y6'92 Case 4:97-cv-10092-JCP DocumenCtI1VIL CEnOtVerEeRd SonHEFELSTD Docket 10/01/1997

co~er The JS-44 civil
rules of court. Th•s

sheet Jnd the form, approved

mformauon conu,ned htrttn neither rep IKe nor .supplemenl the filing by the Jud.cial Conference of the Un1t~d Sut~ Jn Septtmber 1974. ''

1nd service o g • required for t _ o

sheet. {SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

Cf'Ajf

to e r

Page 8 of 8
by loc11 if docket

I (a) PLAINTIFFS
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF------
J,(.IA}EXCEPT IN U.S. PLAINTIFF CASES)
A- i4cAJ;tvE( CJ'7CVIOCl12 f;n~t' /,;7v.~~

DEFENDANTS
KEY LA.RCO GRJ~~-Kr_, fA~ ~TT."..
CJCR.AN REEF CL~J.~, _., .It"~1: corp. ,
OC&'\N REEF CLUB, INC. , a not for profit corp.
MAGISTRATE JUDGE
~ITUNAC
Monr02 COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT
(IN U.S. PLAINTIFF CASES ONLY) NOTE; IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE
TRACT OF LAND INVOLVED

(c)

APTaTmORe.I{LEaYS

{PfirRl~d_2NA-MCF;....hAaDvDERE~SSS,

AND
.S,

TEELvE2PHOGN.E

One Biscayne Tower! Suite 2700

NUMBER)
LOW2

T~o ~o.
M1am1

FLB

isca3y3n13e1B

v~~OS\ '..) · ·

SJO-F00 2 )c -

ATTORNEYS (IF KNOWN)

(d) CIRCL~ COUNTY WHERE ACTION AROSE: DADE,(MONRO~BROWARD, PALM BEACH, MARTIN, ST. LUCIE, INDIAN RIVER, OKEECHOBEE, HIGHLANDS

II. BASIS OF JURISDICTION

(PlACE AN .: IN ONE BOX ONLY}

Xl 1 U.S. Government

0 3 Federal Question

Ill. CITIZENSHIP OF PRINCIPAL PARTIES

(1'\ACE Nix IN ONE BOX

(For Diversity Cases Only)

FOR P\AJNTIFr AHO ONE BOX FOR DEFENDANT)

Plaintiff

(U.S. Government Not a Party)

PTF OEF

PTF DEF

0 2 U.S. Government
Defendant

0 4 Diversity
(Indicate Citizenship of Parttes in hem Ill)

Citizen of This State

01 01

Citizen of Another State 0 2 0 2

Citizen or Subject of a
Foreign Country

03 03

Incorporated 01' Principal Place of Business In This State
Incorporated and Principal Place of Business In Another Stata
Foreign Nation

04 04 05 05
OS 011

IV. CAUSE OF ACTION (CITE THE us CMI.STATVTE UNDER WHICH YOUAA£ fiUNGANOWRHEABRIEFSTATEMENTOFCAUSE.

00 NOT crre JUAISOICTIONAl. srAnm:s uNLess
EinplQvtn2nt Act 9f 1 provlae appropr1.ate

OIVERSIT"t)
967 . reJ_I

T as .ef

his am to

is a ended Caro

l

cla~33 ac ( AD~A) , BoLton,

"':ion sui
to. corre
L::;_nda P

t,
ct
ou

,

1m~2r_ th::: Age Discriminat~o in

un.Law:cul_ Gl-=nda

R2~gl1~.ys~rerrenatn

pract::;_ce?, d other SJ..

. n

and ular

l

~o
.f

IVa. 5 days estimated (for both sides) to try entire case. situated individuals.

v. NATURE OF SUIT (PLACE AN X IN ONE BOX ONLY)

A CONTRACT
0110 Insurance 0120 Manne 0 130 M~ter Act 0 140 Negottable lns!rumenl 0 150 Recovery of O..erpaymenl
& Enforcement of Judgmenr 0 151 Modocoro Act
B 0 152 Recovery of Delauhed Student Loans (Exd. Veterans)
B 0 153 Recovery of O..ecpaymenl of Veleran·s Benefits
0 160 Sloct<holder"S" Suits 0 190 Oilier Conlrld 0 195 Contrld Product Wablly
A RfAL PROPERTY
0 210 Lind Conc!ernNhon
B 0 220 Foreclosufa 0 230 Rent L•••• & Ejectment 0 240 Torts to Lancl 0 245 Tort PrOduct U.Mry 0 290 AJ Olhe• Real Property

A

TORTS

PERSONAL INJURY

PERSONAL INJURY

0 31 0 AoJ>ione
0 315 Airplane Producl l..ial>otly
0 320 - . Ubel & Sloncler
0 330 Federal Employers·
~ly
0 340 Manne
0 34 5 Manne Product

0 362 Personal InjuryMed Malpradlee
0 365 Personal lnjufyProduclliabllily
0 368 "-lOS Pensonot
1'1U'Y P'O<b:l Uol>oily
PERSONAL PROPEr.TY

U.billy

0 370 Oll>er F•aud

0 350 Motor Vol1lde

B 0 371 1iv1l1 in Lending

0355Molo<Yol'olcle

0 380 Olho< Personal

Product IAtloily

Prcpeny Damage

0 360 Oilier P«1ona1 lnjuly

0 385 Properry c...._ Produd l.Jabolily

A CML RIGKTS
0 441 Vobng ~442E~ 0 443 Houoingl
Acconvnodmions 0 444 Welare
0 440 Ol!let c;w Rognrs

B PRISONER PETITIONS
0 510 Motoons 10 ~,. Senrenco Hooeas Co<puo·
~c s30 a.......
0 535 Oeolh Ponolly
""0 540 M.....amus & 0U. 0 550_civil Ri<;~bts

B FORFEITURE /PENAlTY Q610 Agriculture

0 620 01her FOOd & Drug
0 625 Drug Relalod Seirure of
Property 21 usc 881
0 630 Uquor Laws 0 640 R.R & True!< 0 650 AirWne Regs 0 660 Occupat.,.,.r

_0_

SaferytHealth

690 01her

A

LABOR

0 71 0 Fa~r Labat Slandatdo

no BD

Act l..al>or/Mgrnl.

Rel&bono

0 730 Laboo'/Mgml. • Reponing & 1 Disclosure Act

0 740 Roilwoy Laber

Act

0 790 Oll>er l..a1>or

B Liltgall<ln 0 791 Emp. Ret Inc Securny Act

A BANKRUPTCY

0 422 Appeal
28 usc 158

0

423

W 28 lulhscd

t157

A PROPERTY RIGKTS
0 120 Ccpytigtlla 0830 PotonC 0 840 Tr-matk
_B_ SOCIAL SECURITY
0 861 HIA (139511) 0 862 Iliad< Lung {923) 0 863 DIWC/DIWW ~405(g)) 0 1164 SSID Tille XVI 0 865 RSI (-'05(g))

A FEDERAL TAX SUITS
0 870 Taxes (U.S. PloimJI or o.fonclonr)
0 871 IRS-l!Wd Porty
26 usc 7609

A OTHtR STATUTES
0400 s.. ~ment
0410MIItruol 0 430 Banks lnd BoniOng
B 0 450 Commerce/ICC Rateoterc.
0 460 Depoou-
0470Racl<et--and Can4>l OrganizatiOnS
0 81 0 s.Jecuve Serw:e 0 850 Secumes/Commodil>es/
Excl\ange
0 875 c1:2uuosrocr-34C1l0ldenge
0 891 A9>Cullurol Adt
0 892 Econorric Slabolizabon Act
0 893 Emironmenlol Mallen 0 894 Enwgy Alloca- Act 0895 F·-of
-1rlormaloon Act
0 900 Aunppcesa.lEoqf Fua.l.ADcecleerTsTa111Dnabon
0 950 Cons~ of
* SlaleSialula 0 890 Olher StaiUIOiy

•A or 8

A<:bono

*A or B

VI. ORIGIN

(PLACE AN x IN ONE BOX ONLY)

Appeal to Oistnct

.Z 1 Original

0 2 Removed from

0 3 Remanded from

Transferred from
0 4 Ref i led 0 5 another district

0 6 Multidistrict

0 7 Judge from
Magistrate

z ..... Proceeding

Stare Court

Appellate Court

VII. REQUESTED IN CHECK IF THIS IS"- CLASS ACTION )

COMPLAINT:

0 UNDER F.R.C.P. 23 . . _ _ _ . . . . . . .

(specify)
DEMAND$

Utigation

..kldgment

Check YES only if demanded in complaint:

JURY DEMAND:

~YES o NO

VIII. RELATED CASE(S) (See instructions): IF ANY

JUDGE - - - - - - - - - - - D O C K E T NUMBER__ _ _ _ _ _ _ __

I UNITED STATEs DISTRicT couRT
S/F I-2 REV. 6/90

FOR OFFICE USE ONLY: Receipt Mo.

Alount: _ _ _ _ __

Date Paid: _ _ _ _ _ _ _ K/ifp: _ _ _ __

 
 Case 4:97-cv-10092-JCP Document 9 Entered on FLSD Docket 06/25/1998 Page 1 of 10
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE N0.97-10092-CIV-PAINE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiffs, vs. OCEAN REEF CLUB etc.,
Defendant,
_________________________________ /
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND GRANTING PLAINTIFF'S MOTION TO EXTEND TIME TO
SERVE THE COMPLAINT
This matter is before the court upon the Defendant's Motion to Dismiss this action for Plaintiffs' failure to timely effect service of process and upon the Plaintiff's Motion for Extension of Time to Effect Service of Process. Upon consideration of the facts of this case and the applicable authority, this court finds that good cause exists to excuse Plaintiffs' failure to timely serve the Defendant and that the time to effect service of process should be extended.
Factual Background The Plaintiffs filed this age discrimination action on September 30, 1997, naming as the sole Defendant, Key largo Group,

Case 4:97-cv-10092-JCP Document 9 Entered on FLSD Docket 06/25/1998 Page 2 of 10
f/k/a/ Ocean Reef Club. The corporate Defendant was identified through a search with the Florida Department of Corporations. After the lawsuit had been filed, the Plaintiff discovered, through media coverage, that the Key Largo Group no longer owned the subject establishment and that, rather, the establishment was owned by a corporate entity known as the Ocean Reef Club Inc. The Plaintiff promptly filed an Amended Complaint, naming all of the corporate entities who have or had an ownership interest in the establishment. The registered agent for the original Defendant, Key largo, and the added Defendant, Ocean Reef Club, is the same individual, Kenneth A. Luban, whose registered office was located on the Ocean Reef Club premises.
On December 8, 1997, the Clerk of the Court issued a summons for service. The next day, the Plaintiff received the summons and forwarded a copy of it along with the Amended Complaint to Litigation Services, a bonded and certified process server, and directed that the summons and the Amended Complaint be immediately served upon the Defendants through the registered agent, Kenneth A. Luban. On December 29, 1997, the Plaintiff called Litigation Services to learn the status of service and was informed that the process server ad been ill over the holidays and that service had not yet been effected. The Plaintiff demanded that service take
2

Case 4:97-cv-10092-JCP Document 9 Entered on FLSD Docket 06/25/1998 Page 3 of 10
place without further delay. On January 8, 1998, the Plaintiff again contacted Litigation
Services and was advised that the process server was having difficulty contacting the registered agent by phone and that he was denied access to the Ocean Reef property where the registered agent was located.
On January 12, 1998 and January 13, 1998, the process server made attempts to serve the registered agent was advised that private process servers were not permitted access to the private community and that he should contact Mr. Luban by telephone to obtain clearance for entry onto the premises. Mr. Luban was repeatedly unavailable to take the process servers telephone calls and, therefore, the process server was denied access to the private property.
On January 14, 1998, the Plaintiff again diligently contacted Litigation Services and was advised of the continued problem in obtaining access to the registered agent. The Plaintiff then advised that the Summons and Amended Complaint should be released to the Monroe County Sheriff's Office so that service of process could be promptly effected. Due to a clerical error 1n the Sheriff's office, the Summons and Amended Complaint was not received by them until January 22, 1998. The Plaintiff continued
3

Case 4:97-cv-10092-JCP Document 9 Entered on FLSD Docket 06/25/1998 Page 4 of 10

to call and inquire as to the status of the requested service. On

January 28, 1998, the Sheriff attempted to serve Mr. Luban but was

advised that he was unavailable. On January 30, 1998, the Sheriff

continued to attempt to serve the Defendant but was continually

advised that Mr. Luban was unavailable. Finally, on February 3,

1998, the Sheriff was able to effect service of process upon the

Defendant through Mr. Luban, the registered agent.

Analysis

Rule 4(m) of the Federal Rules of Civil Procedure currently

states:

If service of the summons and complaint is not

made upon a defendant within 120 days after

the filing of the complaint, the court, upon

motion or on its own initiative after notice

to the plaintiff, shall dismiss the action

without prejudice as to that defendant or

direct that service be effected within a

specified time;

provided that if the

plaintiff shows good cause for the failure,

the court shall extend the time for service

for an appropriate period.

Prior to the December 1, 1993 amendment to Rule 4, dismissal for failure to effect timely service was mandatory unless the plaintiff could demonstrate good cause for the delay. Petrucelli v. Bohringer & Ratzinger, GmBH, 46 F.3d 1298, 1304 (3d Cir.1995). Rule 4(m), however, which replaces former Rule 4(j) as the

4

Case 4:97-cv-10092-JCP Document 9 Entered on FLSD Docket 06/25/1998 Page 5 of 10
effective provision governing time limits for service, substantially broadens the discretion of the district court to allow an extension of time for service even absent a showing of good cause. Id.; Thompson v. Brown, 91 F.3d 20, 21 (5th Cir.1996).
Interpreting Rule 4(m), the appellate courts have determined that the new rule establishes a two-step procedure that district courts must follow in deciding whether an extension is appropriate:
As a result of the rule change, when a district court entertains a motion to extend time for service, it must first determine whether good cause exists. If good cause is present, the district court must extend time for service. If good cause does not exist, the court may, in its discretion, decide whether to dismiss the case without prejudice or extend time for service. Thompson, 91 F.3d at 21 (citing Petrucelli, 46 F.3d at 1305-06).
Accordingly, after expiration of the 120-day time limit, as here, Rule 4 (m) affords the plaintiff two safety hatches to escape dismissal of the complaint and those are through a showing of "good cause" or by convincing the court that it should exercise its discretion and extend the time for service even absent a showing of good cause. Adams v. AlliedSignal General Aviation Avionics, 74 F.3d 882, 887 (8th Cir.1996); MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3rd Cir.1995); Petrucelli v. Bohringer & Rat zinger, 46 F. 3d 1298, 1305 (3rd Cir .1995) .
5

Case 4:97-cv-10092-JCP Document 9 Entered on FLSD Docket 06/25/1998 Page 6 of 10
Contra, Zachery v. Thigpen, 895 F.Supp. 1472, 1474 (M.D.Ala.l995)
(a showing of good cause is the only safety hatch available to
escape dismissal)
[T]he plain language of the rule itself explains that in all cases, the court has the option of dismissing the action or extending time for service. The fact that the word "shall" is used along with the disjunctive "or" in the first clause indicates that the court has discretion to choose one of these options. As an exception to this general provision, the second clause notes that if good cause exists, the district court has no choice but to extend time for service. Thus, the logical inference that can be drawn from these two clauses is that the district court may, in its discretion, extend time even absent a finding of good cause.
Petrucelli, 46 F.3d at 1305; see also Adams, supra, 74 F.3d at
887; Fed. R. Ci v. P. 4 (m) advisory committee's note (1993) ("The new
subdivision explicitly provides that the court shall allow
additional time if there is good cause for the plaintiff's failure
to effect service in the prescribed 120 days, and authorizes the
court to relieve a plaintiff of the consequences of an application
of this subdivision even if there is no good cause shown").
The burden of establishing good cause for untimely service
rests with the plaintiff, who must show "at least as much as would
be required to show excusable neglect, as to which simple
inadvertence or mistake of counsel or ignorance of the rules
6

Case 4:97-cv-10092-JCP Document 9 Entered on FLSD Docket 06/25/1998 Page 7 of 10
usually does not suffice." Systems Signs Supplies v. United States Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir.1990) (quoting Winters v. Teledyne Movible Offshore, Inc., 776 F. 2d 13 04, 1306 (5th Cir.1985)). In addition, the plaintiff must demonstrate that he was acting in good faith and had some reasonable basis for his noncompliance with the service requirements of Rule 4.
We must first determine whether good cause exists for an extension of time. If good cause exists we must extend the time for servicei however, if good cause is not found to exist the undersigned will then consider whether this court, in its discretion, should dismiss the case without prejudice or extend time for service. See Petrucelli, 46 F.3d at 1305. This analysis of the new Rule 4(m) in no way impacts any prior court decisions which articulate the standard for good cause. See Id. at 1307, n. 11. "Rather, the change which exists in Rule 4 (m) modifies the procedure employed by the district court after a determination as to whether good cause has been made." Id.
Good cause is equated with the concept of "excusable neglect" outlined in Fed.R.Civ.P. 6(b) (2), "which requires 'a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.' " MCI Telecommunications Corp., supra, 71 F.3d at
7

Case 4:97-cv-10092-JCP Document 9 Entered on FLSD Docket 06/25/1998 Page 8 of 10
1097; see also Adams, 74 F. 3d at 887 ("A showing of good cause requires at least 'excusable neglect'--good faith and some reasonable basis for noncompliance with the rules") ; Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.l988) (" '[G)ood cause ... would appear to require at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice, and some showing of "good faith on the parties seeking enlargement and some reasonable basis for noncompliance within the time specified" lS normally required' ") ; Lowe v. Hart, 157 F.R.D. 550, 553 (M.D.Fla.1994) (same as Kersh ) . The undersigned recognizes that "courts have found that factors outside a plaintiff's control, such as sudden illness, natural catastrophe or evasion of service of process," will satisfy this requirement. Zachery, supra, 895 F.Supp. at 1474 (citations omitted); see also Quann, supra, 112 F.R.D. at 659 (evasion of service in the face of plaintiff's attempts to effect service constitutes good cause) . However, absence of prejudice alone can never constitute good cause to excuse late service, nor will inadvertent error, or ignorance or unfamiliarity with the rule governing service, excuse a litigant's failure to effect timely service. MCI Telecommunications Corp., 71 F.3d at 1097; Zachery, 895 F.Supp. at 1474-1475 (citations
8

Case 4:97-cv-10092-JCP Document 9 Entered on FLSD Docket 06/25/1998 Page 9 of 10
omitted); Quann, 112 F.R.D. at 661; Petrucelli, 46 F.3d at 1307 (delay resulting from inadvertence of counsel need not be excused); Hamilton v. Endell, 981 F.2d 1062, 1065 (9th Cir.1992) (inadvertent error is not good cause); Prisco v. Frank, 929 F.2d 603, 604 (11th Cir.1991) (inadvertence or negligence does not establish good cause); Ouann, supra, 112 F.R.D. at 659 (counsel's inadvertence is precisely the factor the rule is aimed at); Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476, 477 (N.D.Ill.1984) (inadvertence of counsel does not establish good cause); Tuke v. United States, 76 F.3d 155, 156 (7th Cir.1996) (ignorance may be an explanation but is not an excuse) ; Hamilton, 981 F.2d at 1065 (ignorance of governing rules is no excuse); Kersh, 851 F.2d at 1512 (a pro se plaintiff's ignorance of the law is no excuse); Zachery, 895 F.Supp. at 1476 n. 5 (an attorney's unfamiliarity with the federal rules does not warrant a finding of good cause); Lowe, 157 F.R.D. at 553 (a pro se plaintiff's ignorance of the law, that is, the fact that she is confused and uninformed regarding the rule governing service, is no excuse).
In the present case, the court finds that the Plaintiff made good faith efforts to effect service of process on the Defendant and that the failure to timely effect service of process was due to circumstances outside of its control, i.e. constant unavailability
9

Case 4:97-cv-10092-JCP Document 9 Entered on FLSD Docket 06/25/1998 Page 10 of 10

of the registered agent who was apparently insulating himself from service of process by denying the process server access to his private property. There was nothing further the Plaintiff could have done to timely effect service of process. Plaintiffs have established that the delay in effecting service of process was the result of circumstances wholly outside of its control and that there exists a good faith, reasonable basis for the failure to timely serve the Complaint once the action was commenced.
The finding of good cause for the failure to serve the Defendant within 120 days of the formal filing of the complaint makes it unnecessary for this Court to consider whether it should, in its discretion, dismiss the case without prejudice or extend the time for service. Accordingly, it is
ORDERED and ADJUDGED that Defendant's Motion to Dismiss is DENIED and Plaintiff's Motion for Extension of Time is GRANTED. The Defendants shall file an Answer to the Amended Complaint within ten days of the date of this order.
DONE and ORDERED at West Palm Beach, Florida, this ~drlay of June, 1998.

c: C. Gregory Stewart James C. Polkinghorn

UNITED 10

 
 Fe~-18-00 15:25

From-l.t.lDO EEOC

3055364494

Case 4:97-cv-10092-JCP Document 29 Entered on FLSD Docket 03/02/2000 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DNISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

CLERK, USDC j SDFL / WPB

Plaintiff,
v.

ClVIL ACTION NO. 97-l0li92-CN-PAINE

OCEAN REEF CLUB, lNC., flkla KEY LARGO GROUP, INC.,
dlb/a OCEAN REEF ACQUISITION CORP.,
fi'k/a OCEAN REEF CLUB, INC., a not for profit corporation, and
f!k/a OCEAN REEF CLUB, INC.,
a for profit a corporation,

FILEDby 5lC_ D.C.
MAR 01 2000
Cl"RENCE MADDOX CLERK IJ.S. DIST. CT. S.D. OF FlA. · W.P.B,

________________D_e_f_en_d_a_n_t.__________________!

SETTLEMENT AGREEMFNT AND ORDER OF DISMISSAL.. This action was filed by the Equal Employment OpportWJit~ Commission, Plaintiff ("EEOC"), on September 30, 1997. On December 9, 1997, the EEOC filed an Amended Complaint in an attempt to name the employer and the successor employer. Whereas, the parties desire to senle this matter as a compromise of disputed and contested claims without any admission ofliability, the panies hereby enter into this Settlement Agreement. The Court approves tlus Settlement Agreement (hereinafter referred to as "Senlemcnt Agreemcmt" or ..Agreement"). Therefore, it is ORDERED that: 1- This Courr has jurisdiction over the parties and subject matter of this action. 2. Venue is proper. 3. The parties to this Settlement Agreement are the Equal Employment OpportUnity
1
CLOSED CA~' fA._
7

Feb-18-00 15:25 From-t.t.!DO EEOC

3055364494

Case 4:97-cv-10092-JCP Document 29 Entered on FLSD Docket 03/02/2000 Page 2 of 5

Commission (""EEOC"), Ocean Reef Club, Inc. (hereinafter referre.:l to as ··ocean Reef') and Key Largo Group, Inc. (hereinafter referred to as "Key Largo"). Key Lll"go was the claimants' emplo}'er when the alleged discrimination occurred. Ocean Reef sa; bsequently purchased substantially all of the assets of Key Largo becoming the successor employer (but not the employer of any of the claimants). 4. By agreeing to and .entering voluntarily into this Senlement Agr~ement, there is no admission, express or implied, that Key Largo or Ocean Reef violated the law ..:111d this Settlement Agreement is not and will not be interpreted or construed as contairling any such admission. 5. Key Largo and Ocean Reef agree ro comply with the AD.EA and not to discnminate against any of its employees who oppose any of its practices which the employee believes to be a
violation of the Age Discrimination in Employment Acr of 1967, a.s amended, ("ADEA'') or who
files charges of dJscrimination with the EEOC alleging violation(s) ~f such statute or who cooperates with the EEOC in the investJgarion of any charge. 6. The tenn of this Senlemtmt Agreement is for three years. 7. Ocean Reef will continue to post all notices required by law and will continue to disseminate and implement a written anti-discrimination polic}' to all of its employees. Ocean Reef agrees that all newly hired employees will be provided with its ami-discrimination policy upon their hiring by Ocean Reet: 8. Ocean Reef agrees to conduct u-aining for all of its managers and employees at least on an
annual basis for the next three years. Ocean Reef agrees that one mc,nth after each such training session, it will provide the EEOC with a list of the names of the employe~s in attendance at the
training session, the specific subject discussed, the date of the traini11g session, rh~ duration of 2

Feb-18-00 15:25 From-t.t.lDO EEOC

3055364494

T-DBZ P.D~/UI ~-biO

Case 4:97-cv-10092-JCP Document 29 Entered on FLSD Docket 03/02/2000 Page 3 of 5

the training session and the name of the indivudual(s) who provided the training. 9. To the extent that Key Largo becomes operational within the nel(t three years, Key Largo agrees to post, disseminate and Implement an anti-discrimination policy to all of its employees; to conduct EEO training for its managers and employees on at leas.: an annual basis for the ne:xt three years; and to post all notices as required by the ADEA. 10. Key Largo agrees to pay the total sum of $30,000, less lawful withholding deductions for federal income tax and employee contributions for social security t~x. to be allocated among the individual claimants in amounts to be detennined by the EEOC. A W-2 form settmg fonh the amount paid and the amounts withheld shall accompany each check for each aggrieved individual. By March 3, 2000, the EEOC will provide a list to Key Largo itemizing the amount to be paid to each claimant with lhdr current addresses, which in th~ aggregate will not exceed the $30,000 figure noted above. By March 17, 2000, Key Largo will ensure that each claimant's check is mailed, certified mai1 return receipt, ro the addresses provi.;Jed by the EEOC. Key Largo also agrees to simultaneously provide the Miami District Office of 1ne EEOC with a copy of each check and each withholding statement. 11. Ifany pany to this Agreement fails to comply with this Senlem ent Agreement, the Coun may award reasonable costs and interest at the rate as allowed by Ia~¥, caused by the noncompliance or delay. 12. Key Largo agrees to provide Linda Pou, with a copy to the EEOC, a lener of reference as found in Exhibit A within 10 days after execution of this Agreement. Additionally, if employment reference inquiries are made about Barbara Epperson, Glenda Register, Linda Pou and/or Carol Bolton. Key Largo will repon only their dates of empk,ymem, positions held and
3

Fec-18-00 15:26 From-t.t.lDO EEOC

3055364494

T-082 P.OS/07 F-675

Case 4:97-cv-10092-JCP Document 29 Entered on FLSD Docket 03/02/2000 Page 4 of 5

that their separation from employment was the result ofresignatioJJ.
13. This Settlement will operate as a full and final resolution of this action. Each pany shall bear its own costs and attorney's fees. 14. The terms of this Agreement are binding upon any successors :>r assigns ofK~y Largo and
Ocean Reef.
15. This case is dismissed with prejudice. The Coun retains jurisdiction to enforce this
Senlement Agreement. All pending motions are denied as moot, and this case is CLOSED.

U.S. Equal Employment OpportUnity Commission
D{~~V\ k.W,- 0i1CA-l{Q/).;,
Delner Franklin-Thomas
Regional Attorney
Eve G. Lowe Supervisory Trial Anomey
Gedety N. Serralta Senior Trial Attorney fl. BarNo. 864137
Miami District Office One Biscayne Tower- Suite 2700
Two South Biscayne Boulevard Miami, florida 33131
Tel. (305) 530-6009
Fac. (305) 536-4494
DATED: Z.\ \e \uu

4

rrom-ftlt'ILJU ttUI.
Case 4:97-cv-10092-JCP Document 29 Entered on FLSD Docket 03/02/2000 Page 5 of 5

(Compauy Letterhead)

(Date)

To Whom it May Concern:

_ _ _ _ _ _was employed with our organization from (date of hire) until (last day

of employment). Throughout this period of time,

was an

with

cur company.

We wish bet well in her future endeavors and have no doub1 that she will be a valuable
asset to your organization.

Sincerely,

Key Largo Representative

(EXHmiT A) 5

 
 CM/ECF - Live Database - flsd - Docket Report

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?404061607206556-L_92...

U.S. District Court Southern District of Florida (Key West) CIVIL DOCKET FOR CASE #: 4:97-cv-10092-JCP

CLOSED

Equal Employment, et al v. Key Largo Group Inc., et al Assigned to: Judge James C. Paine Demand: $0 Cause: 29:0626 Job Discrimination (Age)

Date Filed: 09/30/1997 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Eve G. Lowe Equal Employment Opportunity Commission Miami District Office 2 S Biscayne Boulevard 2700 One Biscayne Tower Miami, FL 33131-2483 305-530-6008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Key Largo Group,Inc. formerly known as Ocean Reef Club Inc.

represented by Cathy Mattson Stutin Fisher & Phillips 450 E Las Olas Boulevard Suite 800 Fort Lauderdale, FL 33301 954-525-4800 Fax: 525-8739 Email: cstutin@laborlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Clark Polkinghorn Fisher & Phillips 450 E Las Olas Boulevard Suite 800 Fort Lauderdale, FL 33301 954-525-4800 Fax: 525-8739 Email: jpolkinghorn@laborlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

1 of 4

5/29/2007 10:20 AM

CM/ECF - Live Database - flsd - Docket Report

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?404061607206556-L_92...

Date Filed 09/30/1997 09/30/1997 09/30/1997 02/24/1998 02/24/1998 03/09/1998 03/09/1998
03/09/1998 03/19/1998 06/23/1998
07/13/1998 01/12/1999 02/25/1999 03/03/1999 03/04/1999

#

Docket Text

1 COMPLAINT filed; FILING FEE waived AEV A-7 (Former Deputy Clerk) (Entered: 10/01/1997)
Magistrate identification: Magistrate Judge Ann E. Vitunac (Former Deputy Clerk) (Entered: 10/01/1997)
2 SUMMONS issued for Key Largo Group, Inc. (Former Deputy Clerk) (Entered: 10/01/1997)
3 MOTION by Key Largo Group,Inc. to dismiss complaint (Former Deputy Clerk) (Entered: 02/24/1998)
4 MEMORANDUM by Key Largo Group,Inc. in support of [3-1] motion to dismiss complaint (Former Deputy Clerk) (Entered: 02/24/1998)
5 MOTION by Equal Employment Opp to extend time to allow service of process and plaintiff's response to defendant's motion to dismiss plaintiff's complaint (Former Deputy Clerk) (Entered: 03/11/1998)
6 MEMORANDUM by Equal Employment Opp in support of [5-1] motion to extend time to allow service of process and plaintiff's response to defendant's motion to dismiss plaintiff's complaint (Former Deputy Clerk) (Entered: 03/11/1998)
7 NOTICE of filing; plaintiff's amended complaint was filed in this Court on 12/8/97 (amended complaint not docketed) by Equal Employment Opportunity (Former Deputy Clerk) (Entered: 03/11/1998)
8 REPLY by Key Largo Group,Inc. to response to [3-1] motion to dismiss complaint (Former Deputy Clerk) (Entered: 03/23/1998)
9 ORDER denying [3-1] motion to dismiss complaint, granting [5-1] motion to extend time to allow service of process and plaintiff's response to defendant's motion to dismiss plaintiff's complaint. The defendants shall file an answer to the amended complaint within 10 days of the date of this order (signed by Judge James C. Paine on 6/22/98) CCAP (Former Deputy Clerk) (Entered: 06/25/1998)
10 ANSWER and AFFIRMATIVE DEFENSES, by Key Largo Group,Inc. (Attorney Cathy Mattson Stutin) to amended complaint (Former Deputy Clerk) (Entered: 07/15/1998)
11 NOTICE of unavailability by attorney for Key Largo Group,Inc. from 4/15/ and 4/16/99. (Former Deputy Clerk) (Entered: 01/14/1999)
12 MOTION by Key Largo Group,Inc. for final summary judgment (Former Deputy Clerk) (Entered: 02/26/1999)
13 UNOPPOSED EMERGENCY MOTION by Equal Employment Opp to extend time to respond to defendant's motion for summary judgment (Former Deputy Clerk) (Entered: 03/04/1999)
14 ORDER granting [13-1] motion to extend time to respond to defendant's motion for summary judgment Response to motion reset to 3/29/99 for [12-1] motion for

2 of 4

5/29/2007 10:20 AM

CM/ECF - Live Database - flsd - Docket Report

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?404061607206556-L_92...

03/15/1999 03/17/1999 03/29/1999 03/29/1999 03/29/1999 03/29/1999 04/07/1999 04/07/1999 04/27/1999
04/29/1999
05/04/1999 08/19/1999 08/19/1999

final summary judgment (signed by Judge James C. Paine on 3/4/99) CCAP (Former Deputy Clerk) (Entered: 03/05/1999)
15 PROPOSED Scheduling Report of Scheduling Meeting by Key Largo Group,Inc., Equal Employment Opp (Former Deputy Clerk) (Entered: 03/16/1999)
16 SCHEDULING ORDER setting Deadline for filing of all motions by 3/29/00 Discovery cutoff 3/29/00. (See order for other deadlines) (signed by Judge James C. Paine on 3/17/99) CCAP (Former Deputy Clerk) (Entered: 03/18/1999)
17 Statement of Undisputed Facts About Which There is no Genuine Issue to be tried: by Equal Employment Opp (Former Deputy Clerk) (Entered: 03/30/1999)
18 RESPONSE by Equal Employment Opp to [12-1] motion for final summary judgment (Former Deputy Clerk) (Entered: 03/30/1999)
18 CROSS MOTION by Equal Employment Opp for partial summary judgment on the issue of statute of limitation and laches (Former Deputy Clerk) (Entered: 03/30/1999)
19 NOTICE of Declaration by Deborah H. Bauer of Equal Employment Opp (Former Deputy Clerk) (Entered: 03/30/1999)
20 UNOPPOSED MOTION by Key Largo Group,Inc. to extend time in which to serve its reply brief in support of its motion for summary judgment (Former Deputy Clerk) (Entered: 04/08/1999)
21 UNOPPOSED MOTION by Key Largo Group,Inc. to extend time in which to serve its reply brief in support of its motion for summary judgment (Former Deputy Clerk) (Entered: 04/08/1999)
22 NOTICE of iling corrected unopposed motion or an enlargement o time until 5/4/99 in which to serve its reply brie in support o its motion or summary judgment, by Key Largo Group,Inc. (Former Deputy Clerk) (Entered: 04/29/1999)
23 ORDER granting [21-1] motion to extend time in which to serve its reply brief in support of its motion for summary judgment, granting [20-1] motion to extend time in which to serve its reply brief in support of its motion for summary judgment. The Defendant shall be granted an enlargement of time until 05/04/99 in which to serve a reply in support of its motion for summary judgment. (signed by Judge James C. Paine on 04/29/99) CCAP (at, Deputy Clerk) (Entered: 05/03/1999)
24 REPLY by Key Largo Group,Inc. to response to [12-1] motion for final summary judgment (Former Deputy Clerk) (Entered: 05/04/1999)
25 MOTION by Equal Employment Opp for leave to file amended complaint to clarify name of successor and to add and/or porperly nane the employer (Former Deputy Clerk) (Entered: 08/20/1999)
26 MEMORANDUM by Equal Employment Opp in support of [25-1] motion for leave to file amended complaint to clarify name of successor and to add and/or porperly nane the employer (Former Deputy Clerk) (Entered: 08/20/1999)

3 of 4

5/29/2007 10:20 AM

CM/ECF - Live Database - flsd - Docket Report

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?404061607206556-L_92...

09/02/1999 02/14/2000 03/01/2000 03/02/2000

27 RESPONSE by Key Largo Group,Inc. in opposition to [25-1] motion for leave to file amended complaint to clarify name of successor and to add and/or porperly nane the employer (Former Deputy Clerk) (Entered: 09/02/1999)
28 NOTICE of designation of expert witness, by Key Largo Group,Inc. (Former Deputy Clerk) (Entered: 02/14/2000)
29 SETTLEMENT AGREEMENT AND ORDER OF DISMISSAL: ORDER dismissing case with prejudice (Signed by Judge James C. Paine on 3/2/00) CCAP [EOD Date: 3/2/00] (Former Deputy Clerk) (Entered: 03/02/2000)
CASE CLOSED. Case and Motions no longer referred to Magistrate. (Former Deputy Clerk) (Entered: 03/03/2000)

PACER Service Center

Transaction Receipt

05/29/2007 11:19:07

PACER Login:

hs0328

Client Code:

Description:

Docket Report

Search Criteria:

Billable Pages: 3

Cost:

eeoc 4:97-cv-10092-JCP 0.24

4 of 4

5/29/2007 10:20 AM