Pizarro v. Vida Cafe, LLC ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEP 20, 2011
No. 11-10519 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:10-cv-22112-AJ
MARC PIZARRO,
and all others similary situated under 29 USC 216(B),
llllllllllllllllllllllllllllllllllllllll Plaintiff–Appellant,
versus
VIDA CAFE, LLC,
d.b.a. Mamajuana Cafe,
EDUARDO CRUZ,
VICTOR OSORIO,
llllllllllllllllllllllllllllllllllllllll Defendants–Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 20, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Marc Pizarro appeals from the district court’s order denying his motion for
reconisderation of the district court’s sua sponte dismissal of his claims against
Victor Osorio for failure to timely effect service.
Pizarro filed a Fair Labor Standards Act claim against his former employers
and obtained a default judgment against two of them. But the district court also
dismissed the claims against Osorio for failure to timely effect service. Pizarro
then filed a motion for reconsideration in which he said that he had timely served
Osorio. Pizarro attached a copy of the return of service to that motion. On the
return the process server checked a box to indicate that he had personally served
the defendant, but wrote in a blank on the form that he had served the defendant at
“c/o Mamajuana Cafe, 247 Dyckman Street New York, NY.” The district court
granted Pizarro’s motion for reconsideration and reinstated the case and ordered
Osorio to respond to the complaint by December 20, 2010.
Shortly thereafter, the district court sua sponte dismissed the case against
Osorio for failure to properly effect service because it believed that Pizarro had
“served” Osorio by leaving the summons and complaint in the care of the
Mamajuana Cafe, which would be insufficient under Federal Rule of Civil
Procedure 4(e).
Pizarro once more moved for reconsideration arguing that although the
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return said that Osorio had been served “c/o Mamajuana Cafe,” the process server
had in fact personally served Osorio. Pizarro also said that he was attaching a
copy of the process server’s supplementary affidavit to the motion and that he
would file the original with the court as soon as he received it in the mail. The
copy filed with the motion was blank, but the day after the motion was filed
Pizarro filed a signed and notarized copy of the process server’s supplementary
affidavit, which said that Osorio had been personally served.
Two days after the supplementary affidavit was filed, the district court
denied Pizarro’s motion for reconsideration. In its order, the district court
referenced the unsigned affidavit but did not mention the signed affidavit that
Pizarro had filed. So once more Pizarro filed a motion for reconsideration as well
as a notice of appeal.
We review an order denying a motion for reconsideration for abuse of
discretion. Equity Investment Partners, LP v. Lenz, 594 F.3d 1337, 1342 (11th
Cir. 2010). A district court abuses its discretion when its decision is based on
clearly erroneous factual findings. Goodman-Gable-Gould Co. v. Tiara
Condominium Ass’n, 595 F.3d 1203, 1210 (11th Cir. 2010). Based on the signed
affidavit that was filed in support of Pizarro’s second motion for reconsideration
(and referenced in that motion), it appears that service was properly made on the
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defendant and that the district court abused its discretion by basing its decision on
a clearly erroneous factual finding. Accordingly, we reverse and remand.
REVERSED and REMANDED.
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