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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JOHN PETER RANDALL,

Plaintiff,

vs. Case No. 5:03cv220-MMP/WCS

CHARLIE CRIST,

Florida Attorney General,

Defendant.

 /

REPORT AND RECOMMENDATION

Defendant Crist has filed a response, doc. 36, to the order to show cause, doc.

35, which was entered on August 25, 2005, and which deferred ruling on the pro se

Plaintiff's motion for a default judgment. Doc. 31. Defendant Crist objects to the entry

of default and simultaneously requests twenty days in which to respond to the

complaint. Doc. 36. Thereafter, Plaintiff filed a reply to Defendant's response. Doc. 38. 

Although a reply memorandum should not be "filed absent a showing of good cause and

upon leave of the court," N.D. Fla. Loc. R. 7.1(C)(2), as Plaintiff is pro se and because

the memorandum was short, it was reviewed and considered.

The complaint was filed when Plaintiff was not a prisoner. Doc. 1. Plaintiff sues

the Attorney General of Florida for an unlawful conviction. He contends that he was not

provided effective assistance of counsel. Plaintiff was successful in this court with a

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1

 The complaint here was filed on August 21, 2003, within the four year statute of

limitations from the time the claim accrued, presumably when the habeas case was

final.

Case No. 5:03cv220-MMP/WCS

petition for writ of habeas corpus. Case No. 5:95cv8-RH (Order granting relief,

September 30, 1998, doc. 15). That decision was affirmed by the Eleventh Circuit on

August 20, 1999.1 Id., doc. 32 in that file. Plaintiff seeks money damages from the

Attorney General. Id.

When this case was filed, Plaintiff named former Florida Attorney General Bob

Butterworth as the Defendant. Doc. 1. In the initial service order, the current Attorney

General for Florida, Charlie Crist, was substituted pursuant to FED. R. CIV. P. 25(d) since

it was assumed that this was a case against the Attorney General in his official capacity. 

Doc. 5. The complaint does not allege that Attorney General Butterworth did anything

personally to harm Plaintiff. 

Defendant Crist acknowledges that on June 6, 2005, a certified mailing was

received by the Office of the Attorney General . . . ." Doc. 36, p. 4, citing doc. 28-2. 

Defendant Crist further admits that the "mailing contained a summons for Charlie Crist

and a copy of the complaint; however, no notice and request for waiver of service of a

summons accompanied the complaint and summons as provided for by [R]ule 4(d)(2)." 

Id., at 4. Counsel for Defendant was "assigned the case on June 10, 2005, and

assessed the service on Defendant Crist as deficient for failing to comply with the

requirements for requesting a waiver of service of process pursuant to rule 4(d)(2)." Id.,

at 4-5. 

Defendant contends that because the summons listed the Defendant as "Charlie

Crist, Attorney General, the State of Florida," counsel believed Defendant Crist was

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2

 The order directing service provided this Court's standard instructions on

service under Rule 4 as is given to all pro se litigants, including notice of the 120 day

deadline for service, the option for personal delivery of the summons and complaint or

service pursuant to Florida law, and also the alternative method of service under Rule

4(d) which permits a party to request a waiver of formal service. Id. The order, per

standard procedure, directed the Clerk to send Plaintiff a summons for formal service

and "a waiver of service form should Plaintiff desire to pursue that alternative method of

service." Doc. 5. 

Case No. 5:03cv220-MMP/WCS

subject to service through waiver of service. Doc. 36, p. 8. Defendant suggests that

early orders to the pro se Plaintiff explained the requirements for service of process

under Rule 4 and advised Plaintiff of the possibility of waiver or service under Rule 4(d). 

Thus, Defendant Crist contends that because service of process through waiver had

been explained to Plaintiff in court orders,2

 and because a waiver form and notice of the

lawsuit was not provided to Defendant Crist, that counsel reasonably deemed Plaintiff's

service effort was deficient and Defendant Crist should not be held in default. Id. The

argument is construed as asserting that because Defendant Crist was not personally

served with service of process, service through mailing required that a waiver request

be contained in the mailing. FED. R. CIV. P. 4(d)(2). Thus, because Plaintiff did not

enclose a waiver from in his certified mail to the Defendant, service of process was

insufficient. 

The procedure for waiver of personal service only applies when a defendant is

sued in his personal capacity. Federal Rule of Civil Procedure 4(d) provides that a

request for waiver of service may be sent only to defendants subject to service under

subdivision (e),(f), or (h), which provide for service upon individuals, corporations, and

associations. Since it is doubtful that Attorney General Crist is sued in his individual

capacity, the argument by counsel for the Attorney General is misplaced.

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Case No. 5:03cv220-MMP/WCS

A suit against Attorney General Crist in his official capacity requires service

pursuant to Rule 4(j)(2) since the suit is, in effect, against the State of Florida. Rule

4(j)(2) requires service "by delivering a copy of the summons and the complaint to [the

state agency's] chief executive officer" or by servicing as prescribed by Florida law. 

Florida law requires service of process be "made on the public officer being sued." See

36 Florida Practice Series § 9.16, citing FLA. STAT. § 48.111(2). There is no evidence

that Attorney General Crist has been personally served as provided by Rule 4(j). 

Where default is entered by a clerk of court but service is found to be insufficient

or otherwise improper, the default should be vacated. J. Distributing, Inc. v. Hornell

Brewing Co., Inc., 340 F.3d 345, 353 (6th Cir. 2003), citing Omni Capital Int'l, Ltd. v.

Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987);

Kearney v. New York State Legislature, 103 F.R.D. 625 (E.D.N.Y. 1984); City of Hialeah

v. Carroll, 324 So.2d 639, 641 (Fla. 3d DCA 1976); Florida City Police Dept. v.

Corcoran, 661 So.2d 409, 411 (Fla. 3d DCA 1995). Thus, there is no basis to enter a

default judgment in this case as Defendant Crist was not properly served with process.

Rule 55(c) provides that "[f]or good cause shown the court may set aside an

entry of default and, if a judgment by default has been entered, may likewise set it aside

in accordance with Rule 60(b)." FED. R. CIV. P. 55(c). Pursuant to Rule 55(c),

Defendant should not be held in default as process does not appear to have been

carried out as required and Plaintiff's motion for a default judgment should be denied.

Defendant seeks additional time to respond to the complaint so that he can

assert defenses, including sufficiency of service of process or the Eleventh Amendment. 

Doc. 36, p. 8. The district judge's last order provided that Plaintiff had to show proof of

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Case No. 5:03cv220-MMP/WCS

service by June 17, 2005, and warned that if the complaint was not served by that date,

it would be dismissed. Doc. 26. It is unknown why Defendant did not, in June, 2005,

file a motion filed pursuant to Rule 12 raising these two defenses. It makes little sense,

and is a waste of judicial resources, for Defendant to set this case aside, wait several

months without doing anything, and then find himself responding to a motion for default. 

These issues should have been directly addressed months ago.

CONCLUSION 

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's motion

for default judgment, doc. 31, be DENIED and the Defendant be directed to file a

response to the complaint within 10 calendar days of the order adopting this report and

recommendation. Finally, it is RECOMMENDED that this case be REMANDED for

further proceedings. 

IN CHAMBERS at Tallahassee, Florida, on September 28, 2005.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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