IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

NATURES WAY MARINE, LLC, )

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Plaintiff,

vs. Civil Action No. 12-0316-CG-M

EVERCLEAR OF OHIO, LTD. and 

NIRK MAGNATE HOLDING 

CORP.,

Defendants.

ORDER

This matter is before the court on the motion to dismiss/quash service

filed by the defendant, Nirk Magnate Holding Corp. (“Nirk Magnate”) (Doc. 

47). Nirk Magnate seeks to dismiss the complaint filed by the plaintiff, 

Natures Way Marine, LLC (“Natures Way”) pursuant to Federal Rule of Civil 

Procedure 12(b)(5), for insufficient service of process, or, in the alternative, to 

quash service. (Doc. 47). The parties have filed their briefs in support and 

opposition, and the matter is ripe for resolution. For the reasons stated

below, the court finds that Nirk Magnate’s motion to dismiss/quash service is 

due to be DENIED.

ANALYSIS

Fed.R.Civ.P. 4(h) governs service of process upon a corporation. Rule 

4(h), in turn, allows a plaintiff to serve a defendant in accordance with Rule 

4(e)(1), which states that a party may be served by “following state law for 

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serving a summons in an action brought in courts of general jurisdiction in 

the state where the district court is located or where service is made.” 

Fed.R.Civ.P. 4(e)(1). Because service in the instant case was made in Florida, 

the parties’ arguments have centered on Florida law regarding service of 

process.

The Florida corporate service of process statute (§48.081) governs 

service of process on a corporation and requires strict compliance. Mecca 

Multimedia, Inc. v. Kurzbard, 954 So.2d 1179, 1181 (Fla. 3rd DCA 2007) 

(citing S.T.R. Indus., Inc. v. Hidalgo Corp., 832 So.2d 262, 263 (Fla. 3d DCA 

2002); York Commc'ns, Inc. v. Furst Group, Inc., 724 So.2d 678, 679 (Fla. 4th 

DCA 1999)). “Absent strict compliance, the court lacks personal jurisdiction 

over the defendant corporation.” York, 724 So.2d at 679. Pursuant to § 

48.081, a corporation may be served by serving process on the president, vice 

president, the cashier, treasurer, secretary, general manager, any director, 

any officer, or a business agent residing in the state. Fla. Stat. § 48.081(1)(ad). Nirk Magnate’s president, vice president, and one of its two directors is 

Jorge Mesa (“Mesa”). (Doc. 48-1).

As an alternative to service of process upon the corporate officers, 

process may be served on the corporation’s registered agent. § 48.081(3)(a). 

Mesa is also Nirk Magnate’s registered agent. See Doc. 48-1. Under 

Florida’s registered agent statute (§ 48.091), the registered agent's office 

must remain open from 10:00 a.m. to 12:00 p.m. each day except Saturdays, 

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Sundays, and legal holidays, and one or more registered agents on whom 

process may be served must be at the office during these hours. § 48.091(1)-

(2). See also S.T.R. Indus., Inc., 832 So.2d at 263; Richardson v. Albury, 505 

So.2d 521, 522–523 (Fla. 2d DCA 1987). In cases where service cannot be 

made on a registered agent because the corporation failed to comply with §

48.091, then service of process is permitted upon any employee at the 

corporation’s principal place of business or upon any employee of the 

registered agent. § 48.081(3)(a). In cases where the corporation’s principal 

place of business is a residence, or where the address provided for the 

registered agent, corporate officers, directors, or employees is a residence, 

then service on the corporation may be made in accordance with Florida’s 

general service of process statute (§ 48.031)1. §48.081(3)(b).

In this case, the return of non-service indicated that, on October 2, 

2012, between the hours of 10:00 a.m. and 12:00 p.m., a process server hired 

by Natures Way went to the address listed as Nirk Magnate’s principal place 

of business on its 2012 Annual Report: 201 S. Biscayne Blvd., 28th Floor, 

Miami, Florida. Doc. 50-2; Doc. 48-1. There, the process server found that 

this address was a “virtual office” maintained by Regus Virtual Offices, and 

that no one from Nirk Magnate, including its president/vice-

																																																							 1 Florida’s general service of process statute (§ 48.031) allows a plaintiff to 

serve the defendant personally by delivering to him a copy of the summons 

and complaint, or by leaving a copy of the summons and complaint at the 

defendant’s usual place of abode with any person who resides there and who 

is 15 years of age or older, and by informing that person of their contents. 

Fla. Statute §48.031(1)(a).

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president/registered agent, Jorge Mesa, actually had an office at that 

address. Doc. 50-2 at 2. Rather, Mesa “came around once in a while to pick 

up” Nirk Magnate’s mail. Id. This constitutes a violation of §48.091, and 

therefore, the process server was permitted to serve process upon one of Nirk 

Magnate’s employees. § 48.091(3)(a). However, since neither Nirk Magnate 

nor Mesa maintained an office at 201 S. Biscayne Blvd., there were no 

corporate employees and no employees of the registered agent available to 

receive copies of the summons and complaint. (Doc. 50-2 at 2).

Two days later, on October 4, 2012, a process server hired by Natures 

Way went to a second address provided in Nirk Magnate’s 2012 Annual 

Report: 6285 SW 98th Street, Miami, Florida. Doc. 50-3 at 2; Doc. 48-1. This 

address is Mesa’s residence, and is listed in the annual report as Nirk 

Magnate’s “current mailing address.” Doc. 48 at 2 (referencing Mesa’s 

“apparent” place of abode); Doc. 48-1. There, the process server served 

Mesa’s daughter, Claudia, with a copy of the summons and complaint. (Doc 

50-3 at 3). There is no dispute among the parties that Ms. Mesa is 15 years 

old or older, nor do the parties dispute that she resides at that address with 

her father.

Natures Way argues that, because the address was a residence, its 

process servers could serve Ms. Mesa in accordance with Florida’s statute 

governing general service of process, § 48.031, which permits service upon a 

resident who is 15 years of age or older. Doc. 50 at 5; see also Fla. Stat. § 

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48.081(3)(b); § 48.031. Nirk Magnate, on the other hand, argues that service 

upon Ms. Mesa at the Mesa residence was insufficient because “a virtual 

office is not recognized by Florida statute § 48.081(3)(b) as one of the 

circumstances which allows a party to circumvent the procedure for service 

set forth under § 48.081(a),” and alleges that Ms. Mesa is not a corporate 

employee or resident agent’s employee. (Doc. 51 at 2). Nirk Magnate also 

points to the fact that Florida law provides for strict construction of its 

service of process statutes. (Doc. 51 at 2).

The Florida District Court of Appeal considered a similar question to 

the one posed here in TID Services, Inc. v. Dass, 65 So.3d 1 (Fla. 2d DCA 

2010); i.e., the question of what happens when a corporation designates its 

registered address as a “private mailbox.” Id. at *6. The court noted that 

“[t]he registered agent is no more likely to be found at a private mailbox than 

at a post office box, but the private mailbox address generally gives the 

appearance—at least on paper—of a physical address for the registered 

office.” Id. The same can be said of the “virtual office” at issue in the instant 

case. The Florida Legislature addressed the private mailbox problem by 

enacting § 48.081(3)(b). Id. The enactment of this amendment to the 

corporate process statute “appears to have been intended to avoid the 

situation in which a corporation could—by listing a private mailbox—feign 

compliance with the statutory requirement but evade service of process by 

concealing the physical whereabouts of its registered agent, officers, 

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directors, and place of business.” Id. Ultimately, the Dass court held that 

the plaintiff, who served the person in charge of the private mailbox, did not 

perfect service of process. Id. The court’s reasoning was that the plaintiff did 

not establish that the private mailbox was the only address discoverable 

through public records for the corporation, its officers, directors, or its

registered agent. Id. at *7. Here, if Natures Way had sought to serve the 

person in charge of the virtual office at 201 S. Biscayne Blvd., the same issue 

would have arisen as in Dass, because Nirk Magnate’s 2012 Annual Report 

lists another address for the corporation – Mesa’s residence.

Thus, while Nirk Magnate is correct that § 48.081 requires strict 

compliance, its argument otherwise misses the mark. Nirk Magnate listed 

its principal place of business as an office where no directors, officers,

corporate employees, or its registered agent could be found. In so doing, Nirk 

Magnate has effectively made it impossible for any plaintiff to strictly comply 

with § 48.081(1) or § 48.081(3)(a). As stated above, if Natures Way sought to 

serve the person in charge at the virtual office, the Dass precedent suggests 

that such service would have been inadequate because another address exists 

for both the corporation and registered agent which was easily discovered by 

looking at the 2012 Annual Report. See Dass at *7. Because the second 

address listed on the Nirk Magnate Annual Report was a residence, then 

serving the corporation there in accordance with the general service of 

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process statute (§ 48.031) is precisely what § 48.081(3)(b) calls for, and what 

Natures Way did.

Accordingly, Nirk Magnate’s motion to dismiss/quash service is hereby 

DENIED.

DONE and ORDERED this 18th day of January 2013.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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