Case 1:22-cv-23753-KMM Document 156 Entered on FLSD Docket 04/14/2023 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
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`Case No. 22-cv-23753-MOORE/BECERRA
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`EDWIN GARRISON, et al., on behalf of
`themselves 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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`DEFENDANT UDONIS HASLEM’S MOTION TO DISMISS FOR INSUFFICIENT
`SERVICE OF PROCESS AND INCOPORATED MEMORANDUM OF LAW
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`Case 1:22-cv-23753-KMM Document 156 Entered on FLSD Docket 04/14/2023 Page 2 of 5
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`Pursuant to Rule 12(b)(5), FED. R. CIV. P., and the PAPERLESS ORDER [ECF 132]
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`Defendant Udonis Haslem (“Mr. Haslem”) moves to dismiss for insufficient service of process
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`and failure to serve him timely. Plaintiffs’ filings establish that the purported “service” was
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`“effected” through the process server’s tossing the summons packet onto the windshield of
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`Mr. Haslem’s wife’s vehicle miles from their home, see ECF 88-2, pg. 6, which is insufficient
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`under Florida law. Therefore, service should be quashed and the claims against him dismissed for
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`this independent reason, in addition to the reasons set out in the [Joint] Motion to Dismiss (etc.)
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`[ECF 154].
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`INTRODUCTION AND FACTS
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`As to Mr. Haslem (and, in fact, many of the other defendants), Plaintiffs wholly disregarded
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`their service duties. Plaintiffs’ ninety-day deadline to serve Mr. Haslem expired February 13, 2023.
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`See Rule 4(m), FED. R. CIV. P. A summons was issued for Mr. Haslem on December 5, 2022. See
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`ECF 12. The “Details for Job 2023000250” (“Details”) – i.e., serving Mr. Haslem – filed by
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`Plaintiffs establish that Plaintiffs’ process server was not even engaged to serve Mr. Haslem until
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`February 21, 2023, well after the February 13, 2023, service deadline. See ECF 88-2, pgs. 6-7
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`(Exhibit A) at 1. Further, Plaintiffs’ representation to the Court that Mr. Haslem “evaded service,”
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`ECF 88 at 3 n.4, is objectively false. The first attempt at service was not until February 25, 2023,
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`see Ex. A at 2, when the Miami Heat were on a road trip.1 Plaintiffs did not purportedly serve
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`Mr. Haslem – through his wife – until February 28, according to the Return of Service, which
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`1 As stated in the Amended Complaint [ECF 16], Mr. Haslem is a “basketball player for
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`the Miami Heat[.]” Id. at ¶ 34. Since the Heat were on a road trip when service was first attempted,
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`see https://www.nba.com/heat/schedule, it is no surprise that he was not in Miami. Being at work
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`in Charlotte, North Carolina, see id., cannot constitute “evading service” in Miami.
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`Case 1:22-cv-23753-KMM Document 156 Entered on FLSD Docket 04/14/2023 Page 3 of 5
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`states Mrs. Haslem was served “pursuant to F.S.48.031(2).(A).” See ECF 77 (Exhibit B) at 1.
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`Plaintiffs’ own filings show that statement is also false. The Details state that the process server
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`“placed [the summons] on her windshield as [supposedly] sufficient service.” See id. at 1. This
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`“service” occurred at the intersection of Weston Road and Griffin Road in Southwest Ranches, see
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`id., which is nearly four miles away from the Haslem’s residence, see Screenshot from Google
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`Maps (Exhibit C).2 The Details document also shows that Mrs. Haslem in no way agreed to be
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`served away from the Haslem residence. See id. at 1 (the process server chased Mrs. Haslem in his
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`vehicle and she “refused to communicate”).
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`MEMORANDUM OF LAW
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`As this action was filed in Florida and service was attempted in Florida, Florida law
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`governs the validity of service. See, e.g., Order [ECF 133] at 2. Plaintiffs claim to have effected
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`substitute service under § 48.031(2)(a), see Return of Service at 1; however, Plaintiffs’ filings
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`establish that they did not. Therefore, the “service” should be quashed and the action dismissed as
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`to Mr. Haslem for the additional reason of Plaintiffs’ failure to serve him timely.
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`“Statutes which govern substituted service of process are to be strictly construed and also,
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`they must be strictly complied with.” Aero Costa Rica, Inc. v. Dispatch Svcs., Inc., 710 So. 2d 218,
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`219 (Fla. 3d DCA 1998); see also PAPERLESS ORDER [ECF 101] at 1 (same). Among other
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`requirements, substitute service of process upon a spouse away from the residence is valid if, and
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`2 Mr. Haslem requests that the Court take judicial notice of the locations and the distance
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`between the Haslem home and the intersection, as these are facts “within the [C]ourt’s territorial
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`jurisdiction” that “cannot reasonably be questioned.” Rule 201(b)(1) & (2), FED. R. EVID.,
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`Therefore, judicial notice is proper. See, e.g., Ferguson v. Destefano, 2010 WL 11561136, at *5
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`(S.D. Fla. Oct. 6, 2010) (citing Gov’t of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979)).
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`Case 1:22-cv-23753-KMM Document 156 Entered on FLSD Docket 04/14/2023 Page 4 of 5
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`only if, inter alia, “if the spouse requests such service.” § 48.031(2)(a), Fla. Stat. Here, the Details
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`establish Plaintiffs’ process server’s failures to comply with § 48.031(2)(a). Not only was the
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`service well away from the Haslem residence, the Details establish Mrs. Haslem did not agree to
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`accept service. After two claimed attempts with no success at even communicating, see id. at 2,
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`the process server chased Mrs. Haslem in her vehicle, she “refused to communicate” with him,
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`and he “placed [the summons] on her windshield as [supposedly] sufficient service,” see id. at 1.3
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`As a matter of Florida law, that does not constitute sufficient service, the claimed service
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`should be quashed, and this action dismissed as to Mr. Haslem for failure to serve him timely. See
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`Selvas v. Atlas One Fin. Grp., LLC, 2011 WL 13223728, at *1 (S.D. Fla. Aug. 26, 2011) (Ungaro,
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`J.) (quashing substitute service upon defendant’s wife in a grocery store parking lot across from
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`defendant’s residence because the plaintiff’s process server’s affidavits “ma[d]e clear that [the
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`wife] refused process” and dismissing action for failure to timely effect service).
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`Plaintiffs’ deadline for service was February 13, 2023, which deadline has long since
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`passed. Accordingly, Mr. Haslem respectfully requests that this Court enter an order quashing
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`service and dismissing the action against him. See Fed. R. Civ. P. 4(m).
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`3 There are significant concerns regarding process server’s credibility. The third attempt at
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`service allegedly occurred at 8:38 a.m. on February 28, 2023, eight minutes after the process server
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`claims to have made “numerous attempts” to reach the occupant of the property (at 8:30 a.m.) and
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`then “dr[ove] across the street to notate [the] attempt.” See id. Then, the process server claims to
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`have been able to follow Mrs. Haslem over three and a half miles away from her home to the
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`intersection of Weston Road and Griffin Road, stop and identify himself, explain the reason for
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`his attempt to serve, try to communicate with Mrs. Haslem, read the summons, and place the
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`summons on her windshield – all somehow by 8:38 a.m., a mere eight minutes later. See id.
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`Case 1:22-cv-23753-KMM Document 156 Entered on FLSD Docket 04/14/2023 Page 5 of 5
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`CONCLUSION
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`WHEREFORE, Defendant Udonis Haslem respectfully requests that the Court quash the
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`purported service, dismiss this matter against him for the additional reason of Plaintiffs’ failure to
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`effect proper service timely, and grant him such other relief as the Court deems just and proper.
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`Dated: April 14, 2023
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`Respectfully submitted,
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`AKERMAN LLP
`201 East Las Olas Boulevard – Suite 1800
`Ft. Lauderdale, FL 33301
`Tel.: 954-463-2700
`Fax: 954-468-2454
`By: /s/ Christopher S. Carver
`Christopher S. Carver
`Florida Bar No. 993580
`christopher.carver@akerman.com
`Jason S. Oletsky, Esq.
`Florida Bar No. 9301
`jason.oletsky@akerman.com
`Katherine A Johnson
`Florida Bar No. 1040357
`katie.johnson@akerman.com
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`Attorneys for Defendant Udonis Haslem
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