IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 22-cv-23753-MOORE/BECERRA

EDWIN GARRISON, et al., on behalf of 

themselves and all other similarly situated,

Plaintiffs,

v.

SAM BANKMAN-FRIED, et al.,

Defendants.

/

DEFENDANT SHAQUILLE O’NEAL’S MOTION TO DISMISS FOR INSUFFICIENT 

SERVICE OF PROCESS AND INCORPORATED MEMORANDUM OF LAW

Case 1:22-cv-23753-KMM Document 191 Entered on FLSD Docket 05/08/2023 Page 1 of 6
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After a failed motion to serve Mr. O’Neal by alternate means, Plaintiffs now suddenly

claim to have served him in the state of Georgia.

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 They rely on two process servers—neither of 

whom has legal authority to serve process in Georgia—who “tossed . . . legal documents at the 

front of” Mr. O’Neal’s moving car, and “le[ft] the legal documents on the road where they landed.” 

Affs. 1, ECF No. 161. This purported “service” is inadequate under Rule 4 of the Federal Rules

of Civil Procedure and Georgia law. It should be quashed, and the claims against Mr. O’Neal 

dismissed pursuant to Fed. R. Civ. P. 12(b)(5).

I. BACKGROUND.

Plaintiffs filed this action on November 15, 2022. See Compl., ECF No. 1. Their ninetyday window to serve Mr. O’Neal expired on February 13, 2023. See Fed. R. Civ. P. 4(m). Yet 

Plaintiffs did not even hire a process server to attempt service on Mr. O’Neal until February 21, 

2023. Pls.’ Composite Ex. B. at 4, ECF No. 88-2. According to their filings, Plaintiffs first sought 

to serve Mr. O’Neal on February 23, 2023—well after the deadline to complete service—at his

former wife’s Texas home. See id. at 4-5. When this effort too did not succeed, Plaintiffs next 

attempted service at an address they believe to be Mr. O’Neal’s Texas residence, but he was not

there. Id. Plaintiffs then emailed copies of the service papers to counsel who represented Mr. 

O’Neal in previous, unrelated matters. Pls.’ Resp. 5-6 & Exs. G, H, ECF Nos. 99, 99-7, 99-8. 

Plaintiffs next asked the Court to permit service by “direct message” on Twitter or Instagram or 

by email to attorneys who did not then and do not now represent Mr. O’Neal in this case. Mot. 8, 

ECF No. 122. The Court rejected these requests as “factually unsupported,” “legally insufficient,” 

and “frivolous.” Order 3, ECF No. 133.

Plaintiffs’ latest attempted service fares no better. Plaintiffs’ affidavits state that the two 

1 Plaintiffs allege Mr. O’Neal is a Texas resident. Am. Compl. ¶ 38, ECF No. 16.

Case 1:22-cv-23753-KMM Document 191 Entered on FLSD Docket 05/08/2023 Page 2 of 6
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process servers—neither of whom is registered in Georgia—saw Mr. O’Neal driving his car out 

of his residence. Affs. 1, 5. They crowded the road outside the double residential gate to his 

property, making it so he had to drive by both of them to leave his home, and then stepped outside 

their cars. Id. One of them claims to have called Mr. O’Neal’s name, and both state they held up 

“legal documents.” Id. at 1, 5. Neither process server, however, identified himself or explained 

to Mr. O’Neal that he was there to serve process. Id. Instead, as Mr. O’Neal—who never exited 

his car—drove past the strangers lurking outside his home, one of the process servers “tossed the 

legal documents at the front of” his car. Id. When the documents hit the car, which was moving 

“at a high rate of speed,” the documents “f[e]ll onto the road,” and the process servers “l[e]ft the 

legal documents on the road where they landed”—that is, on the public road. Id. at 1-3. 

II. ARGUMENT.

Plaintiffs may serve Mr. O’Neal by “following state law for serving a summons” in the 

state “where service is made”—i.e., Georgia—or by “delivering a copy of the summons and of the 

complaint to the individual personally.” Fed. R. Civ. P. 4(e). Plaintiffs did neither. 

First, Plaintiffs’ attempted service was insufficient under Georgia law, which requires that 

“personal service must be made by an authorized person.” Merck v. St. Joseph’s Hosp. of Atl., 

Inc., 555 S.E.2d 11, 13 (Ga. Ct. App. 2001) (alteration and quotation omitted). “Authorized 

persons” include only law enforcement officers, individuals who are “specially appointed” by 

court order to serve process, and “certified process server[s]” registered with state and county 

officials. O.C.G.A. §§ 9-11-4(c), -4.1. Plaintiffs’ process servers are neither specially appointed 

nor certified in Georgia.

2 Any service upon Mr. O’Neal by these “unauthorized person[s]” would 

2 Plaintiffs’ process servers do not appear on either the Georgia Sheriffs’ Association’s “registry 

of certified process servers,” O.C.G.A. § 9-11-4.1(e); see Ga. Sheriffs’ Ass’n, All Certified Process 

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thus be “a nullity.” Lewis v. Waller, 637 S.E.2d 505, 511 (Ga. Ct. App. 2006) (quotation omitted).

Second, Plaintiffs have not “personally” served Mr. O’Neal as required by Rule 4(e)(2)(A)

and Georgia law, see O.C.G.A. § 9-11-4(e)(7) (requiring service in manner similar to 

Rule(4)(e)(2)). Effective service by personal delivery “require[s] that the service documents be

‘tendered’ to the recipient.” Blueskygreenland Env’tl Sols., LLC v. Rentar Env’tl Sols., Inc., 2013 

WL 12095152, at *1 (S.D. Fla. Apr. 3, 2013). Throwing papers at a moving car and leaving them 

unattended on a public highway “is not good tender as it provides no way of knowing whether the 

papers landed in physical proximity to” Mr. O’Neal. Id.; cf. Branstetter v. Lorenzo, 2022 WL 

1037198, at *2 (D. Haw. Mar. 14, 2022) (attempted service by “leaving papers on a parked 

vehicle” did not “amount to substantial compliance with Rule 4(e)(2)”); Omnitrition Int’l Inc. v. 

Omnilife USA, Inc., 1997 WL 560772, at *1 (N.D. Tex. Aug. 29, 1997) (service would be 

insufficient if “an unidentified person hurled papers at the exterior of the [defendant’s] limousine 

as it drove by,” distinguishing facts). 

As this Court has observed, “Plaintiffs must strictly comply with the statutory 

requirements” for service on Mr. O’Neal. ECF No. 101. “A defendant’s actual notice is not 

sufficient to cure defectively executed service.” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 

2007). Plaintiffs have had months and multiple tries. Mr. O’Neal has not evaded service by failing 

to be at the residences where Plaintiffs belatedly attempted service or by driving past strangers 

who approached his car. The Court should quash service and dismiss the claims against him. 

Servers, http://www.gsacpsregistry.org/ (last accessed May 8, 2023), or the list of court- appointed 

process servers for the Georgia Superior Court assigned to McDonough, Georgia, see Henry Cnty. 

Gov’t, Flint Jud. Cir. Special Process Server List 2022-2023, https://www.co.henry.ga.us/

Departments/Courts/Superior-Court/Approved-Process-Servers (last accessed May 8, 2023).

Case 1:22-cv-23753-KMM Document 191 Entered on FLSD Docket 05/08/2023 Page 4 of 6
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Respectfully submitted,

Colson, Hicks, Eidson, P.A. 

255 Alhambra Circle, Penthouse

Coral Gables, Florida 33134

(305) 476-7400

By: /s/ Roberto Martínez

Roberto Martínez

Florida Bar No. 305596

bob@colson.com

Stephanie A. Casey

Florida Bar No. 97483

scasey@colson.com

Zachary Lipshultz

Florida Bar No. 123594

zach@colson.com

LATHAM & WATKINS LLP

Andrew B. Clubok (pro hac vice)

 andrew.clubok@lw.com

Susan E. Engel (pro hac vice)

 susan.engel@lw.com

Brittany M.J. Record (pro hac vice)

 brittany.record@lw.com

555 Eleventh Street, N.W., Suite 1000

Washington, D.C. 20004-1304

Tel: +1.202.637.2200

Fax: +1.202.637.2201

LATHAM & WATKINS LLP

Marvin S. Putnam (pro hac vice)

 marvin.putnam@lw.com

Jessica Stebbins Bina (pro hac vice)

 jessica.stebbinsbina@lw.com

Elizabeth A. Greenman (pro hac vice)

 elizabeth.greenman@lw.com

10250 Constellation Blvd., Suite 1100

Los Angeles, California 90067

Tel: +1.424.653.5500

Fax: +1.424.653.5501

LATHAM & WATKINS LLP

Michele D. Johnson (pro hac vice)

 michele.johnson@lw.com

650 Town Center Drive, 20th Floor

Costa Mesa, California 92626-1925

Tel: +1.714.540.1235

Fax: +1.714.755.8290

Attorneys for Defendant Shaquille O’Neal

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 8, 2023, a true and correct copy of the foregoing was 

filed electronically with the Clerk of the Court, by using the CM/ECF system, causing a true and 

correct copy to be served on all counsel of record.

By: /s/ Roberto Martínez

Roberto Martínez

Case 1:22-cv-23753-KMM Document 191 Entered on FLSD Docket 05/08/2023 Page 6 of 6