Miller et al v. Weinmann et al, No. 2:2019cv02213 - Document 6 (D. Nev. 2020)
Court Description: ORDER Granting 3 Motion to Extend Time to Extend Time to Serve Defendants re 1 Complaint. Proof of service due by 5/22/2020. Signed by Magistrate Judge Daniel J. Albregts on 3/27/2020. (Copies have been distributed pursuant to the NEF - ADR)
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Miller et al v. Weinmann et al Doc. 6 Case 2:19-cv-02213-JCM-DJA Document 3 Filed 03/25/20 Page 1 of 3 1 2 3 4 5 ROB L. PHILLIPS Nevada Bar No. 8225 Rob.phillips@fisherbroyles.com FISHERBROYLES, LLP 5670 Wilshire Blvd. Suite 1800 Los Angeles, California 90036 Telephone: (702) 518-1239 Counsel for Plaintiffs 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 Dennis R. Miller, an individual, and Omni Block, a Nevada Corporation, FISHERBROYLES, LLP 5670 Wilshire Blvd., Suite 1800 Los Angeles, CA 90036 Telephone: (702) 518-1239 10 Case No.: 2:19-CV-02213-JCM-DJA Plaintiff, EXPARTE MOTION TO EXTEND TIME TO SERVE DEFENDANTS; AND PROPOSED ORDER 11 v. 12 Edward M. Weinmann, an individual, and Advanced Masonry Consulting Inc., a Florida Corporation, 13 14 Defendants. 15 16 17 18 19 20 21 22 Dennis R. Miller (“Miller”), an individual, and Omni Block (collectively “Plaintiffs”) file this ExParte Motion for Additional Time to Serve the Complaint in this action on Defendants Edward M. Weinmann (“Weinmann”), an individual, and Advanced Masonry Consulting Inc. (“Advanced Masonry”) ( collectively “Defendants”). BACKGROUND 23 Plaintiffs filed their Complaint in this action on December 23, 2019. (Dkt. No. 1). The 24 parties attempted to resolve the matter for approximately seventy (70) days through early March. 25 Unfortunately, the settlement discussions did not result in a resolution. Consequently, on or 26 about March 3, 2020, Plaintiffs, through counsel, requested that ABC Legal, a process service 27 company located in Plantation, Florida serve Defendants. Service attempts have been made at 28 1 EXPARTE MOTION TO EXTEND TIME TO SERVE DEFENDANTS Dockets.Justia.com FISHERBROYLES, LLP 5670 Wilshire Blvd., Suite 1800 Los Angeles, CA 90036 Telephone: (702) 518-1239 Case 2:19-cv-02213-JCM-DJA Document 3 Filed 03/25/20 Page 2 of 3 1 Mr. Wienmann’s last known address, his girlfriend’s address and his employer’s address, all to 2 no avail although the girlfriend does acknowledge she knows Mr. Weinmann. (see, Exhibit A). 3 Attempts to serve Advanced Masonry have also been attempted, again to no avail, at the address 4 listed in its LLC filing with the Florida Secretary of State (see, Exhibit B). Unfortunately, 5 Defendant Advanced Masonry is not adhering to Florida Statue § 48.091(2) whereby “[E]very 6 corporation shall keep the registered office open from 10 a.m. to 12 noon each day except 7 Saturdays, Sundays, and legal holidays, and shall keep one or more registered agents on whom 8 process may be served at the office during these hours.” Indeed, the address provided to the 9 Florida Secretary of State as the registered agent address (1061 NW 78TH TERRACE, 10 PLANTATION, FL 33322) for Defendant Advanced Masonry belongs to a residence not a 11 business and the residents have nothing to do with Defendant Advanced Masonry. 12 It is not known whether or not Defendants are intentionally evading service but efforts 13 will need to continue to effectuate service. Additionally, the current COVID-19 outbreak is sure 14 to cause delay with the continued efforts to effectuate service. Accordingly, Plaintiffs request an 15 additional sixty (60) days to serve Defendants the Complaint and Summons in this matter. 16 MEMORANDUM OF POINTS AND AUTHORITIES 17 Applicable Federal Law 18 19 Fed. R. Civ. Pro. Rule 4(m) reads “[I]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss 20 the action without prejudice against that defendant or order that service be made within a 21 specified time. But if the plaintiff shows good cause for the failure, the court must extend the 22 time for service for an appropriate period.” In this instance, the 90-day period to serve 23 Defendants expired on March 23, 2020 and Defendants, as set forth above, have yet to be served. 24 25 Because Defendants are domiciled in Florida, service is proper by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the 26 district court is located or where service is made…” Fed. R. Civ. Pro. Rule 4(e) (as incorporated 27 by reference into Fed. R. Civ. Pro. Rule 4(h)). 28 2 EXPARTE MOTION TO EXTEND TIME TO SERVE DEFENDANTS Case 2:19-cv-02213-JCM-DJA Document 3 Filed 03/25/20 Page 3 of 3 1 The Florida Rules 2 Plaintiffs, through ABC Legal, are continuing efforts to serve Defendants pursuant to Fla. 3 R. Cic. Pro. §1.070(b) which states, in part, “[S]ervice of process may be made by an officer 4 authorized by law to serve process, but the court may appoint any competent person not 5 interested in the action to serve the process.” Defendants do not have a permanent presence in 6 Nevada where they can be served directly so service in Florida is the only available option. 7 At this stage, ABC Legal is planning on a stakeout at Mr. Weinmann’s girlfriend’s house 8 so we expect service to happen soon and certainly within the extension of sixty (60) days 9 requested herein. FISHERBROYLES, LLP 5670 Wilshire Blvd., Suite 1800 Los Angeles, CA 90036 Telephone: (702) 518-1239 10 CONCLUSION 11 Based on the foregoing, Plaintiffs contend that good cause supports an extension of sixty 12 (60) days from March 23, 2020 to May 22, 2020 serve Defendants the Complaint and Summons 13 in this action. 14 DATED this 25th day of March 2020. 15 Respectfully submitted, 16 FISHERBROYLES, LLP 17 18 /s/ Rob L. Phillips 19 ROB L. PHILLIPS, ESQ. Nevada Bar No. 8225 5670 Wilshire Blvd., Suite 1800 Los Angeles, CA 90036 Telephone: (702) 518-1239 Counsel for Plaintiffs 20 21 22 23 24 IT IS SO ORDERED 25 DATED: 27, 2020 DATED: March ______________ 26 27 28 ___________________________ US MAGISTRATE Daniel J. Albregts JUDGE United State Magistrate Judge EXPARTE MOTION TO EXTEND TIME TO SERVE DEFENDANTS 3 Case 2:19-cv-02213-JCM-DJA Document 3-1 Filed 03/25/20 Page 1 of 8 From: To: Subject: Date: noreply@abclegal.com Rob Phillips [External Sender]Service Attempted for Reference # OmniBlock Saturday, March 7, 2020 8:56:47 AM A service attempt was performed on your order! Reference #: OmniBlock Case #: 2:19-CV-02213-JCM-DJA Your Process Server: Miriam Marquez De La Plata Person(s) To Be Served: EDWARD M. WEINMANN Date/Time: March 07 2020 11:50 AM Address: 1061 NW 78TH TERRACE, PLANTATION, FL 33322 Outcome: No answer at door, no movement inside, no lights and no noise inside. No vehicles in driveway. To contact us, view your order progress, and access photos and documents click here. EXHIBIT A Case 2:19-cv-02213-JCM-DJA Document 3-1 Filed 03/25/20 Page 2 of 8 From: To: Subject: Date: noreply@abclegal.com Rob Phillips [External Sender]Service Attempted for Reference # OmniBlock Monday, March 9, 2020 7:21:18 AM A service attempt was performed on your order! Reference #: OmniBlock Case #: 2:19-CV-02213-JCM-DJA Your Process Server: Miriam Marquez De La Plata Person(s) To Be Served: ADVANCED MASONRY CONSULTING INC. Date/Time: March 09 2020 10:15 AM Address: 1061 NW 78TH TERRACE, PLANTATION, FL 33322 Outcome: Per AIDA SOL , RESIDENT, an Hispanic female contact approx. 4555 years of age, 5'6"-5'8" tall, weighing 160-180 lbs with brown hair with an accent; subject unknown. She stated they are renting that house and moved in at the beginning of this month. They are from Puerto Rico and don?t know defendant. We spoke Spanish only. To contact us, view your order progress, and access photos and documents click here. EXHIBIT A Case 2:19-cv-02213-JCM-DJA Document 3-1 Filed 03/25/20 Page 3 of 8 From: To: Subject: Date: noreply@abclegal.com Rob Phillips [External Sender]Service Attempted for Reference # OmniBlock Saturday, March 14, 2020 11:44:40 AM A service attempt was performed on your order! Reference #: OmniBlock Case #: 2:19-CV-02213-JCM-DJA Your Process Server: April Lewis Person(s) To Be Served: EDWARD M. WEINMANN Date/Time: March 14 2020 02:43 PM Address: 130 SW 63RD TERRRACE, PLANTATION, FL 33317 Outcome: No answer at door, no movement inside, no lights and no noise inside. Ring doorbell no answer bike in driveway covered To contact us, view your order progress, and access photos and documents click here. EXHIBIT A Case 2:19-cv-02213-JCM-DJA Document 3-1 Filed 03/25/20 Page 4 of 8 From: To: Subject: Date: noreply@abclegal.com Rob Phillips [External Sender]Service Attempted for Reference # OmniBlock Monday, March 16, 2020 8:20:42 AM A service attempt was performed on your order! Reference #: OmniBlock Case #: 2:19-CV-02213-JCM-DJA Your Process Server: Vernon Jacobs Jr. Person(s) To Be Served: ADVANCED MASONRY CONSULTING INC. Date/Time: March 16 2020 11:15 AM Address: 8500 NW 36TH AVE, MIAMI, FL 33147 Outcome: Per JOHN DOE, WHO REFUSED TO GIVE NAME, PERSON IN CHARGE, a black-haired Hispanic male contact approx. 45-55 years of age, 5'4"-5'6" tall and weighing 200-240 lbs with an accent and glasses; subject moved. This is FSS company (florida silica sand) not advanced masonry consulting inc. Edward Weinmann is a outsourced salesman that is based in west palm beach. Phone number 3052068517 To contact us, view your order progress, and access photos and documents click here. EXHIBIT A Case 2:19-cv-02213-JCM-DJA Document 3-1 Filed 03/25/20 Page 5 of 8 From: To: Subject: Date: noreply@abclegal.com Rob Phillips [External Sender]Bad Address Discovered for Reference # OmniBlock Monday, March 16, 2020 9:20:42 AM We tried to serve ADVANCED MASONRY CONSULTING INC. but found the address is no longer valid. Reference #: OmniBlock Person(s) To Be Served: ADVANCED MASONRY CONSULTING INC. Address: 8500 NW 36TH AVE, MIAMI, FL 33147 Identified on: 03/16/2020 Reason: Per JOHN DOE, WHO REFUSED TO GIVE NAME, PERSON IN CHARGE, a black-haired Hispanic male contact approx. 45-55 years of age, 5'4"-5'6" tall and weighing 200-240 lbs with an accent and glasses; subject moved. This is FSS company (florida silica sand) not advanced masonry consulting inc. Edward Weinmann is a outsourced salesman that is based in west palm beach. Phone number 3052068517 We need a new address to try to serve ADVANCED MASONRY CONSULTING INC.. We can help! Request a Locate and Serve here. Already have another address? Add it here. EXHIBIT A Case 2:19-cv-02213-JCM-DJA Document 3-1 Filed 03/25/20 Page 6 of 8 From: To: Subject: Date: noreply@abclegal.com Rob Phillips [External Sender]Service Attempted for Reference # OmniBlock Monday, March 16, 2020 2:10:28 PM A service attempt was performed on your order! Reference #: OmniBlock Case #: 2:19-CV-02213-JCM-DJA Your Process Server: April Lewis Person(s) To Be Served: EDWARD M. WEINMANN Date/Time: March 14 2020 02:45 PM Address: 130 SW 63RD TERRRACE, PLANTATION, FL 33317 Outcome: Per TRACY OWNER OF HOME, RESIDENT, a white female contact approx. 45-55 years She is the only occupant and knows Edward but states he doesn?t reside here To contact us, view your order progress, and access photos and documents click here. EXHIBIT A Case 2:19-cv-02213-JCM-DJA Document 3-1 Filed 03/25/20 Page 7 of 8 From: To: Subject: Date: noreply@abclegal.com Rob Phillips [External Sender]Bad Address Discovered for Reference # OmniBlock Wednesday, March 18, 2020 4:19:16 PM We tried to serve EDWARD M. WEINMANN but found the address is no longer valid. Reference #: OmniBlock Person(s) To Be Served: EDWARD M. WEINMANN Address: 130 SW 63RD TERRRACE, PLANTATION, FL 33317 Identified on: 03/14/2020 Reason: Per TRACY OWNER OF HOME, RESIDENT, a white female contact approx. 45-55 years She is the only occupant and knows Edward but states he doesn?t reside here We need a new address to try to serve EDWARD M. WEINMANN. We can help! Request a Locate and Serve here. Already have another address? Add it here. EXHIBIT A Case 2:19-cv-02213-JCM-DJA Document 3-1 Filed 03/25/20 Page 8 of 8 From: To: Subject: Date: noreply@abclegal.com Rob Phillips [External Sender]New Message for Reference # OmniBlock Wednesday, March 25, 2020 12:07:41 PM Hmm understood. We can reattempt the girlfriend address but if you need our server to hang out and wait, it will be a stakeout. We charge $60 per hour on a stakeout, with a minimum of 1 hour. We also need at least 48 hours to set it up and for you to let us know how long my server should wait for either in the morning or evening. Otherwise, I can just tell our server to attempt in late evening or early morning but we can only do personal service. Subservice is not allowed if individual is not a coresident. Please advise. Click here to provide additional details or comments. Click here to to take our customer satisfaction survey. -----Original Inquiry-----Can you try service for both defendants at: 130 SW 63rd Terrace (girlfriend's house) Plantation, FL 33317 Florida Silica Sand Company (his employer) 8500 NW 36th Ave. Miami, FL 33147 EXHIBIT A Case 2:19-cv-02213-JCM-DJA Document 3-2 Filed 03/25/20 Page 1 of 1 EXHIBIT B
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