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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 Extension of Time to Allow

United States Marshals to Effect Proper Individual Service on Sheriff Donnie Conyers of

the Liberty County Sheriff’s Department (Doc. 36). Also pending are Plaintiff’s Motion/

Request for Final Judgment and Motion for Final Hearing Date, Motion for Default

Judgment as to Donnie Conyers, Motion for Hearing, and Motion for Computation of

Damages. (Docs. 30, 31, 32, 33.) For the reasons set forth below, Plaintiff’s motion for

extension of time to effect service is due to be granted. Plaintiff’s other motions are

due to be denied as moot.

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. A Clerk’s Default was entered against Sheriff Conyers on May 16,

2012 (Doc. 29) due to Sheriff Conyers’s failure to respond to the Plaintiff’s Second

Amended Complaint (Doc. 21). Plaintiff contended the Defendant was served with

process on April 5, 2012 and asked the Court to enter a default judgment under Rule 55

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against the Defendant. (Doc. 31.) This Court’s service order had provided Sheriff

Conyers with 21 days after service of the Second Amended Complaint to file an answer

or otherwise respond. (Doc. 22.) No response from Defendant Conyers was ever filed

with the Court.

In response to the Plaintiff’s request for a default judgment, the Court reviewed

the docket, which reflected that a summons and a copy of the Second Amended

Complaint were personally served by the United States Marshal on April 5, 2012 upon

an individual named Nicole Thompson, who is listed on the return of service as a

Secretary. (Doc. 25.) The Court noted that pursuant to Fed. R. Civ. P. 4(j) , when 1

serving a state, municipal corporation, or any other state-created governmental

organization that is subject to suit, the defendant must be served through one of the

following methods: (i) delivering a copy of the summons and complaint to its chief

executive officer; or (ii) serving a copy of the summons and complaint in the manner

prescribed by state law for service on such defendant. (Doc. 34.) Under Florida law

service of process against any public agency, board, commission or department that is

not a body corporate or having a governing board or commission can be served on the

public officer being sued or the chief executive officer of the agency, board,

commission, or department. FLA. STAT. 48.111(2).

The Court further noted that in this case, the return did not reflect that service

was made in accordance with any of the provisions of Federal Rule of Civil Procedure

Because Plaintiff is suing Sheriff Conyers in his official capacity, the suit is properly construed as

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raising a claim against the Liberty County Sheriff’s Office. Owens v. Fulton County, 877 F.2d 947, 951 n. 5

(11th Cir.1989)(“For liability purposes, a suit against a public official in his official capacity is considered a suit

against the local government entity he represents.”).

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4, because service of process upon a secretary is not an available method of service

under Florida law or under Rule 4 for service on the office of a county sheriff. 

Accordingly, the Court deferred ruling on Plaintiff’s motion for default judgment to give

Plaintiff an opportunity to show cause that the summons and complaint were served

properly in accordance with Rule 4 of the Federal Rules of Civil Procedure. (Doc. 34.) 

In response to the order to show cause, Plaintiff has stated that he believed

service to be properly made on Ms. Thompson, and that he relied on the

representations of the Clerk’s office that proper service had been effectuated. (Doc.

35.) Plaintiff also appears to concede that service in this case was improper, however,

as he did not argue that service was properly made under Rule 4. Plaintiff also filed a

motion for extension of time to effectuate service. (Doc. 36.) In that motion, he states

that he has contacted the United States Marshals Service and requested that service

be made on Sheriff Conyers again. Plaintiff also requests an additional sixty (60) days

under Rule 4(m) within which to effectuate service of process on Defendant. 

Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part, that

“If service of the summons and complaint is not made upon a defendant within 120

days after filing the complaint, the court ... 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.” 

The 120 day mandate imposed by the rule was not meant to be enforced harshly

or inflexibly, Williams v. Publix Warehouse, 151 F.R.D. 428, 431 (M.D. Fla. 1993). To

satisfy the “good cause” standard, the party seeking an enlargement of time to effect

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service need only show good faith and a reasonable basis for noncompliance with the

rule’s timeliness requirement. Gambino v. Village of Oakbrook, 164 F.R.D. 271, 274

(M.D. Fla. 1995). Based upon the representations in Plaintiff’s motion the Court

concludes that Plaintiff has satisfied the good cause standard, and will grant the motion

to extend time to effectuate service. Because service was not properly completed in

the first instance, the Court will quash service on the first summons, and then direct the

clerk to deliver a second summons and waiver form to the Marshal so that service may

be made properly.

Finally, because service on Defendant Conyers was never made properly, the

Court also directs that the Clerk’s default be set aside. In the absence of a default,

Plaintiff’s remaining motions for final judgment and hearing date, default judgment,

hearing, and computation for damages are now moot.

Accordingly, upon due consideration, it is ORDERED that:

(1) The Clerk must set aside the Clerk’s Default against Defendant Conyers,

Doc. 29.

(2) Plaintiff’s Motion/ Request for Final Judgment and Motion for Final

Hearing Date, Motion for Default Judgment as to Donnie Conyers, Motion

for Hearing, and Motion for Computation of Damages, Docs. 30, 31, 32,

and 33, are DENIED as moot.

(3) Plaintiff’s Motion for Extension of Time to Allow United States Marshals to

Effect Proper Individual Service on Sheriff Donnie Conyers of the Liberty

County Sheriff’s Department (Doc. 36) is GRANTED. 

(4) Service of the the previous summons is quashed.

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

complete the USM-285 forms and AO-398 and AO-399 forms for the

Defendant.

(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, the completed USM-285 form and the

completed AO-398 and AO-399 forms, 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) Pursuant to Rule 4(d) of the Federal Rules of Civil Procedure, the USMS

shall send a copy of the Second Amended Complaint, a copy of this

order, a completed AO-398 form and a copy thereof, a AO-399 form, and

a prepaid means of compliance to the Defendant through first class mail. 

The USMS shall mail the forms to Defendant as soon as possible so that

service or waiver of service can be completed within 120 days from the

date of entry of this order on the docket.

(8) If after thirty (30) days from the mailing of the waiver of service forms and

the complaint the Defendant has not returned the waiver of service form

(AO-399 form), the USMS shall personally serve the Defendant pursuant

to Rule 4(e) of the Federal Rules of Civil Procedure. 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.

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(9) The Clerk must refer this file to the undersigned if the waiver form is

returned for insufficient address or for similar reason, 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.

(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

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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 11, 2012 to complete service of

process upon Defendant.

(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 23 day of July 2012. 

rd

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

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