Case 1:22-cv-23753-KMM Document 133 Entered on FLSD Docket 04/11/2023 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`Case No. 1:22-cv-23753-KMM
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`EDWIN GARRISON, et al., on behalf of
`Himself and all similarly situated,
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`Plaintiffs,
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`v.
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`SAM BANKMAN-FRIED, et al.,
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`Defendants.
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`ORDER
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`THIS CAUSE came before the Court upon the Motion to Serve Defendant Shaquille
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`O’Neal Through Approved Alternative Means, (“Mot.” or “Motion”) (ECF No. 122), filed by
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`Plaintiff Edwin Garrison, on behalf of himself and all others similarly situated (“Plaintiffs”).
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`Defendant O’Neal has not yet appeared in this action, nor has he filed a response. The Motion is
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`now ripe for review.
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`I.
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`BACKGROUND
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`Plaintiffs move to serve Defendant Shaquille O’Neal (“Defendant O’Neal”) under Texas
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`law, where they allege Defendant O’Neal is located. See generally Mot. Plaintiffs specifically
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`request that this Court permit service on Defendant O’Neal “(1) via direct message from The
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`Moskowitz Law Firm’s Twitter account to one of O’Neal’s verified Twitter account (@DJDiesel);
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`(2) via direct message from The Moskowitz Law Firm’s Instagram account to O’Neal’s verified
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`Instagram accounts (@Shaq and @DJDiesel); and (3) via email to Shaq’s prior and current counsel
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`in other matters,” which they allege is permissible under Texas law. Id. at 8.
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`II.
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`DISCUSSION
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`Federal Rule of Civil Procedure 4(e)(1) provides that an individual may be served in a
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`judicial district of the United States by “following state law for serving a summons . . . in the state
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`where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1). Accordingly,
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`the Federal Rules permit service on an individual under the law in the state (1) where the district
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`court is located, or (2) where service is made. Fed. R. Civ. P. 4(e)(1). Here, the district court is in
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`Florida. Plaintiffs could, but did not, move to serve Defendant O’Neal under Florida law.
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`Instead, Plaintiffs move to serve Defendant O’Neal under Texas law. See generally Mot.
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`For Texas law to apply, Texas must be where service is made. See Fed. R. Civ. P. 4(e)(1). While
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`Plaintiffs allege that Defendant O’Neal is domiciled in Texas, they do not allege that Texas is
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`“where service [will be] made.” See generally Mot. In fact, the Court notes that Plaintiffs provide
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`no explanation as to why Texas law should govern the service of Defendant O’Neal—Plaintiffs
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`request to serve Defendant O’Neal electronically, and do not request any form of physical service
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`in Texas. Id.
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`In support of this tenuous argument, Plaintiffs cite two cases, neither of which are binding
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`in this district, where a court permitted service under the laws of another state. Mot. at 9–10. Yet
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`as explained below, neither cited case is applicable where Plaintiffs seek to serve Defendant
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`O’Neal via the Internet.
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`In the first case, Izen v. Catalina, the Fifth Circuit found that service of process was valid
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`under Oklahoma law where, although the case was filed in a district court in Texas, service was
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`made at the defendant’s former place of work, which was in Oklahoma. 256 F.3d 324, 327 (5th
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`Cir. 2001). There, the court found that Oklahoma law was properly applied under Rule 4(e)(1)
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`because service was clearly made in Oklahoma. Id. Izen is distinguishable from the instant case,
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`2
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`Case 1:22-cv-23753-KMM Document 133 Entered on FLSD Docket 04/11/2023 Page 3 of 4
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`however, because Plaintiffs here do not argue that physical service will be made in Texas. See
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`generally Mot. Nor do Plaintiffs even attempt to argue that serving Defendant O’Neal via the
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`Internet constitutes service in Texas. Id. Thus, Izen is inapposite to the instant case.
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`Next, Plaintiffs cite to Doe v. Islamic Salvation Front (FIS), in which the district court
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`permitted service on a defendant under Rule 4(e)(2). 993 F. Supp. 3, 7 (D.D.C. 1998). There, the
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`court dismissed the defendant’s argument that although he was personally served with the
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`summons and complaint, service was improper because he was an “excludable alien.” Id. Not
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`only is Doe factually distinct, but in that case the court permitted service under Rule 4(e)(2), not
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`Rule 4(e)(1) (i.e., the subsection of the statute applicable in this action). In this sense, Doe is both
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`legally and factually inapplicable to the decision at bar. In sum, Plaintiffs provide no legal
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`authority—binding or persuasive—supporting the proposition that Texas law should govern
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`service of process where service is made electronically. See generally Mot.
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`As an aside, the Court notes that, throughout this case’s short tenure in litigation, Plaintiffs
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`have repeatedly failed to comply with the Local Rules and this Court’s Orders (despite several
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`admonishments by this Court itself).1 Now, at the instant juncture, Plaintiffs have filed a motion
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`that is factually unsupported and legally insufficient. Particularly in such a complex and costly
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`litigation for all parties involved, the Court will not continue to tolerate such violations or frivolous
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`arguments.
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`1 See ECF No. 47 (striking a letter filed by Plaintiffs in violation of the local rules); ECF No. 82
`(denying Plaintiffs’ Request for a Brief Status Conference for failing to include a conferral
`statement, as required by the local rules, and instructing Plaintiffs to comply with the Court’s
`November 16, 2022 Paperless Order, which they had failed to do); ECF No. 90 (ordering Plaintiffs
`to show cause why Defendants Naomi Osaka and Shaquille O’Neal should not be dismissed
`because Plaintiffs failed to serve them).
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`3
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`III.
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`CONCLUSION
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`UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being
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`otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiffs’
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`Motion to Serve Defendant Shaquille O’Neal Through Approved Alternative Means (ECF No. 11)
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`is DENIED.
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`DONE AND ORDERED in Chambers at Miami, Florida, this ____ day of April, 2023.
`11th
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`K. MICHAEL MOORE
`UNITED STATES DISTRICT JUDGE
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`c: All counsel of record
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`4
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