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SPOONER v. LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP, 3:15-CV-1330-J-39PDB. (2015)

Court: District Court, M.D. Florida Number: infdco20151120b29 Visitors: 14
Filed: Nov. 19, 2015
Latest Update: Nov. 19, 2015
Summary: Order PATRICIA D. BARKSDALE , Magistrate Judge . The plaintiff filed this legal malpractice case in state court on June 17, 2015, against the law firm of Lieff, Cabraser, Heiman & Bernstein, LLP, and eleven of its current or former lawyers. Doc. 2. Under Florida Rule of Civil Procedure 1.070(j), she had 120 days—until October 15, 2015—to serve process. Two days before the deadline, she filed a motion for a 120-day extension to serve process on Jennifer Gross, Esquire—until February 12, 201
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Order

The plaintiff filed this legal malpractice case in state court on June 17, 2015, against the law firm of Lieff, Cabraser, Heiman & Bernstein, LLP, and eleven of its current or former lawyers. Doc. 2. Under Florida Rule of Civil Procedure 1.070(j), she had 120 days—until October 15, 2015—to serve process. Two days before the deadline, she filed a motion for a 120-day extension to serve process on Jennifer Gross, Esquire—until February 12, 2016. Doc. 3. The other defendants who had been served with process removed the case to this Court on November 5, 2015, while the motion was pending, Doc. 1.

Under Federal Rule of Civil Procedure 4(m), "[i]f a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time."1 Fed. R. Civ. P. 4(m). The 120-day period applies if an action is removed from state court to federal court except, by operation of Federal Rule of Civil Procedure 81(c)(1), the period begins on the date of removal. Cardenas v. City of Chicago, 646 F.3d 1001, 1004-05 (7th Cir. 2011); Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th Cir. 2010); Medlen v. Estate of Meyers, 273 F. App'x 464, 470 (6th Cir. 2008); see also White v. Capio Partners, LLC, No. 1:15-cv-120, 2015 WL 5944943, at *2 (S.D. Ga. Oct. 13, 2015) (unpublished) (citing cases).

Because the plaintiff has 120 days from the November 5, 2015, removal date— until March 4, 2016—to serve Gross, the Court denies the motion for an extension of time to serve her, Doc. 3, as moot.2

Ordered.

FootNotes


1. To move cases along at the beginning, an amendment to Federal Rule of Civil Procedure 4(m), effective December 1, 2015, reduces the time from 120 days to 90 days. Advisory Committee Notes to 2015 Amendments. The amendment "shall take effect on December 1, 2015, and shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending." United States Supreme Court Order dated April 29, 2015.
2. The Court will consider any future motion for an extension in light of the goal of the amendment reducing the service time from 120 to 90 days, the fact that plaintiff has had since June 17, 2015, to serve Gross, and the fact that the already served defendants have identified her as a Maryland citizen, Doc. 7 ¶ 2(d).
Source:  Leagle

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