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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

 TALLAHASSEE DIVISION

ROBERT L. ROWLAND,

Plaintiff,

vs. Case No: 4:10-cv-64-RH-GRJ

DONNIE CONYERS, 

LIBERTY COUNTY SHERIFF

Defendant.

_______________________________/

ORDER

This case is before the Court on Plaintiff’s Motion for Clarification and

Objections, and Defendant Conyers’ Motion to Quash Service of Process (Docs. 43,

46). For the following reasons, Plaintiff’s motion is due to be denied as moot and

Defendant’s motion is due to be granted.

The background to the case is this. Plaintiff, a prisoner in the custody of the

Florida Department of Corrections, sought entry of a default judgment against

Defendant Donnie Conyers, Sheriff of Liberty County, Florida. The Court reviewed the

docket and determined that personal service had been improperly made upon Nicole

Thompson, who was listed on the return of service as a Secretary. (Doc. 25.) Both 

Federal Rule of Civil Procedure 4(j) and Florida Statutes 48.111(2) require that personal

service be made on the “chief executive officer” of a state-created governmental

organization. 

After Plaintiff responded to an order to show cause, the Court granted Plaintiff an

extension of time to effectuate service and ordered that the previous summons be

quashed. (Doc. 39.) The Court further ordered the United States Marshals to mail the

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complaint and a waiver of service to Defendant Conyers. If Defendant Conyers did not

submit the waiver of service, the Marshals were ordered to personally serve him in

accordance with the Federal Rules of Civil Procedure. This meant, as per the extensive

discussion in the body of the order, that Defendant Conyers—not Ms.

Thompson—was to be served.

It now appears that service was again improperly made, because on August 7,

2012, Ms. Thompson was again served. (Doc. 44.) Defendant Conyers has filed a

motion to quash the summons because of this improper service. This motion will be

granted, but Defendant Conyers should take note: he has provided no evidence

whatsoever that he did not receive the complaint and waiver of summons, and has

chosen not to waive service. Pursuant to Rule 4(d)(2)(A) of the Federal Rules of Civil

Procedure the Court must impose on the defendant the expenses later incurred in

making service. 

Accordingly, upon due consideration, it is ORDERED that:

(1) Defendant Conyers’ Motion to Quash Service of Process, Doc. 46, is

GRANTED.

(2) Plaintiff’s Motion for Clarification and Objections, Doc. 43, is DENIED as

moot.

(3) Service of the previous summons is quashed.

(5) The clerk shall print a copy of the Second Amended Complaint and shall 

complete the USM-285 forms for the Defendant.

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(6) The Clerk must issue a summons, indicating that Defendant has twentyone (21) days in which to file a response to the Second Amended

Complaint, and refer the summons, a copy of this order, a service copy of

the Second Amended Complaint, and the completed USM-285 form, to

the United States Marshals Service (USMS). Pursuant to Fed. R. Civ. P.

4(c)(2), all costs of service shall be advanced by the United States.

(7) The USMS shall personally serve the Defendant pursuant to Rule 4(j) of

the Federal Rules of Civil Procedure. This requires that Defendant

Conyers, and ONLY Defendant Conyers, be served. Service upon a

secretary or administrative assistant will not comply with this order.

Upon completion of service, the USMS shall file with the clerk the return

and a written statement of all costs incurred of making such personal

service.

(9) The Clerk must refer this file to the undersigned if service on the

Defendant is returned unexecuted, or if the USMS has filed a statement of

costs incurred for making personal service.

(10) Defendant shall have twenty-one (21) days in which to file a response to

the Second Amended Complaint. 

(11) No motion for summary judgment shall be filed by any party prior to entry

of an initial scheduling order without permission of the court.

(12) Counsel for Defendant shall file a notice of appearance within ten (10)

days of the date of service of the Second Amended Complaint.

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(13) Once a response to the Second Amended Complaint is filed, no

amendments to the Second Amended Complaint shall be permitted by the

court unless, as required by Rule 15 of the Federal Rules, Plaintiff files a

separate motion for leave to so amend and provides a copy of the

proposed amended complaint.

(14) After a response to the Second Amended Complaint has been filed by

Defendant, Plaintiff shall be required to mail to the attorney for Defendant

a copy of every pleading or other paper, including letters, submitted for

consideration by the court. Plaintiff shall include with the original paper to

be filed with the clerk of court a certificate of service stating the date a

correct copy of the paper was mailed to Defendant or to the attorney

representing Defendant. Any paper submitted for filing after a

response to the complaint has been filed by Defendant which does

not contain a certificate of service shall be returned by the clerk and

disregarded by the court.

(15) In accordance with 28 U.S.C. § 636(c)(2), the clerk shall forward to

Plaintiff a form for consenting to trial by the magistrate judge, with the

case number written on it. If Plaintiff wishes to consent he should sign the

form and forward it to counsel for Defendant, who, if Defendant consents,

shall return it to the clerk only if Defendant also consents.

(16) Plaintiff shall have until September 27, 2012 to complete service of

process upon Defendant.

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(17) In any event, the Clerk shall refer this file to the undersigned fortyfive (45) days from the date of this order.

DONE AND ORDERED this 28 day of August, 2012. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

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