Case 1:22-cv-23753-KMM Document 191 Entered on FLSD Docket 05/08/2023 Page 1 of 6
`
`IN THE UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
`
`Case No. 22-cv-23753-MOORE/BECERRA
`
`
`EDWIN GARRISON, et al., on behalf of
`themselves and all other similarly situated,
`
`Plaintiffs,
`
`
`v.
`
`SAM BANKMAN-FRIED, et al.,
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`/
`
`
`
`
`
`
`DEFENDANT SHAQUILLE O’NEAL’S MOTION TO DISMISS FOR INSUFFICIENT
`SERVICE OF PROCESS AND INCORPORATED MEMORANDUM OF LAW
`
`
`
`
`
`

`

`Case 1:22-cv-23753-KMM Document 191 Entered on FLSD Docket 05/08/2023 Page 2 of 6
`
`
`
`After a failed motion to serve Mr. O’Neal by alternate means, Plaintiffs now suddenly
`
`claim to have served him in the state of Georgia.1 They rely on two process servers—neither of
`
`whom has legal authority to serve process in Georgia—who “tossed . . . legal documents at the
`
`front of” Mr. O’Neal’s moving car, and “le[ft] the legal documents on the road where they landed.”
`
`Affs. 1, ECF No. 161. This purported “service” is inadequate under Rule 4 of the Federal Rules
`
`of Civil Procedure and Georgia law. It should be quashed, and the claims against Mr. O’Neal
`
`dismissed pursuant to Fed. R. Civ. P. 12(b)(5).
`
`I.
`
`BACKGROUND.
`
`Plaintiffs filed this action on November 15, 2022. See Compl., ECF No. 1. Their ninety-
`
`day window to serve Mr. O’Neal expired on February 13, 2023. See Fed. R. Civ. P. 4(m). Yet
`
`Plaintiffs did not even hire a process server to attempt service on Mr. O’Neal until February 21,
`
`2023. Pls.’ Composite Ex. B. at 4, ECF No. 88-2. According to their filings, Plaintiffs first sought
`
`to serve Mr. O’Neal on February 23, 2023—well after the deadline to complete service—at his
`
`former wife’s Texas home. See id. at 4-5. When this effort too did not succeed, Plaintiffs next
`
`attempted service at an address they believe to be Mr. O’Neal’s Texas residence, but he was not
`
`there. Id. Plaintiffs then emailed copies of the service papers to counsel who represented Mr.
`
`O’Neal in previous, unrelated matters. Pls.’ Resp. 5-6 & Exs. G, H, ECF Nos. 99, 99-7, 99-8.
`
`Plaintiffs next asked the Court to permit service by “direct message” on Twitter or Instagram or
`
`by email to attorneys who did not then and do not now represent Mr. O’Neal in this case. Mot. 8,
`
`ECF No. 122. The Court rejected these requests as “factually unsupported,” “legally insufficient,”
`
`and “frivolous.” Order 3, ECF No. 133.
`
`Plaintiffs’ latest attempted service fares no better. Plaintiffs’ affidavits state that the two
`
`1 Plaintiffs allege Mr. O’Neal is a Texas resident. Am. Compl. ¶ 38, ECF No. 16.
`
`
`
`
`
`1
`
`

`

`Case 1:22-cv-23753-KMM Document 191 Entered on FLSD Docket 05/08/2023 Page 3 of 6
`
`process servers—neither of whom is registered in Georgia—saw Mr. O’Neal driving his car out
`
`of his residence. Affs. 1, 5. They crowded the road outside the double residential gate to his
`
`property, making it so he had to drive by both of them to leave his home, and then stepped outside
`
`their cars. Id. One of them claims to have called Mr. O’Neal’s name, and both state they held up
`
`“legal documents.” Id. at 1, 5. Neither process server, however, identified himself or explained
`
`to Mr. O’Neal that he was there to serve process. Id. Instead, as Mr. O’Neal—who never exited
`
`his car—drove past the strangers lurking outside his home, one of the process servers “tossed the
`
`legal documents at the front of” his car. Id. When the documents hit the car, which was moving
`
`“at a high rate of speed,” the documents “f[e]ll onto the road,” and the process servers “l[e]ft the
`
`legal documents on the road where they landed”—that is, on the public road. Id. at 1-3.
`
`II.
`
`ARGUMENT.
`
`Plaintiffs may serve Mr. O’Neal by “following state law for serving a summons” in the
`
`state “where service is made”—i.e., Georgia—or by “delivering a copy of the summons and of the
`
`complaint to the individual personally.” Fed. R. Civ. P. 4(e). Plaintiffs did neither.
`
`First, Plaintiffs’ attempted service was insufficient under Georgia law, which requires that
`
`“personal service must be made by an authorized person.” Merck v. St. Joseph’s Hosp. of Atl.,
`
`Inc., 555 S.E.2d 11, 13 (Ga. Ct. App. 2001) (alteration and quotation omitted). “Authorized
`
`persons” include only law enforcement officers, individuals who are “specially appointed” by
`
`court order to serve process, and “certified process server[s]” registered with state and county
`
`officials. O.C.G.A. §§ 9-11-4(c), -4.1. Plaintiffs’ process servers are neither specially appointed
`
`nor certified in Georgia.2 Any service upon Mr. O’Neal by these “unauthorized person[s]” would
`
`
`
`2 Plaintiffs’ process servers do not appear on either the Georgia Sheriffs’ Association’s “registry
`
`of certified process servers,” O.C.G.A. § 9-11-4.1(e); see Ga. Sheriffs’ Ass’n, All Certified Process
`
`
`
`2
`
`

`

`Case 1:22-cv-23753-KMM Document 191 Entered on FLSD Docket 05/08/2023 Page 4 of 6
`
`thus be “a nullity.” Lewis v. Waller, 637 S.E.2d 505, 511 (Ga. Ct. App. 2006) (quotation omitted).
`
`Second, Plaintiffs have not “personally” served Mr. O’Neal as required by Rule 4(e)(2)(A)
`
`and Georgia law, see O.C.G.A. § 9-11-4(e)(7) (requiring service in manner similar to
`
`Rule(4)(e)(2)). Effective service by personal delivery “require[s] that the service documents be
`
`‘tendered’ to the recipient.” Blueskygreenland Env’tl Sols., LLC v. Rentar Env’tl Sols., Inc., 2013
`
`WL 12095152, at *1 (S.D. Fla. Apr. 3, 2013). Throwing papers at a moving car and leaving them
`
`unattended on a public highway “is not good tender as it provides no way of knowing whether the
`
`papers landed in physical proximity to” Mr. O’Neal. Id.; cf. Branstetter v. Lorenzo, 2022 WL
`
`1037198, at *2 (D. Haw. Mar. 14, 2022) (attempted service by “leaving papers on a parked
`
`vehicle” did not “amount to substantial compliance with Rule 4(e)(2)”); Omnitrition Int’l Inc. v.
`
`Omnilife USA, Inc., 1997 WL 560772, at *1 (N.D. Tex. Aug. 29, 1997) (service would be
`
`insufficient if “an unidentified person hurled papers at the exterior of the [defendant’s] limousine
`
`as it drove by,” distinguishing facts).
`
`As this Court has observed, “Plaintiffs must strictly comply with the statutory
`
`requirements” for service on Mr. O’Neal. ECF No. 101. “A defendant’s actual notice is not
`
`sufficient to cure defectively executed service.” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir.
`
`2007). Plaintiffs have had months and multiple tries. Mr. O’Neal has not evaded service by failing
`
`to be at the residences where Plaintiffs belatedly attempted service or by driving past strangers
`
`who approached his car. The Court should quash service and dismiss the claims against him.
`
`
`
`Servers, http://www.gsacpsregistry.org/ (last accessed May 8, 2023), or the list of court- appointed
`
`process servers for the Georgia Superior Court assigned to McDonough, Georgia, see Henry Cnty.
`
`Gov’t, Flint Jud. Cir. Special Process Server List 2022-2023, https://www.co.henry.ga.us/
`
`Departments/Courts/Superior-Court/Approved-Process-Servers (last accessed May 8, 2023).
`
`
`
`3
`
`

`

`Case 1:22-cv-23753-KMM Document 191 Entered on FLSD Docket 05/08/2023 Page 5 of 6
`
`
`
`
`
`Respectfully submitted,
`
`Colson, Hicks, Eidson, P.A.
`255 Alhambra Circle, Penthouse
`Coral Gables, Florida 33134
`(305) 476-7400
`
`
`
`By: /s/ Roberto Martínez
`Roberto Martínez
`Florida Bar No. 305596
`bob@colson.com
`Stephanie A. Casey
`Florida Bar No. 97483
`scasey@colson.com
`Zachary Lipshultz
`Florida Bar No. 123594
`zach@colson.com
`
`LATHAM & WATKINS LLP
`Andrew B. Clubok (pro hac vice)
` andrew.clubok@lw.com
`Susan E. Engel (pro hac vice)
` susan.engel@lw.com
`Brittany M.J. Record (pro hac vice)
` brittany.record@lw.com
`555 Eleventh Street, N.W., Suite 1000
`Washington, D.C. 20004-1304
`Tel: +1.202.637.2200
`Fax: +1.202.637.2201
`
`LATHAM & WATKINS LLP
`Marvin S. Putnam (pro hac vice)
` marvin.putnam@lw.com
`Jessica Stebbins Bina (pro hac vice)
` jessica.stebbinsbina@lw.com
`Elizabeth A. Greenman (pro hac vice)
` elizabeth.greenman@lw.com
`10250 Constellation Blvd., Suite 1100
`Los Angeles, California 90067
`Tel: +1.424.653.5500
`Fax: +1.424.653.5501
`LATHAM & WATKINS LLP
`Michele D. Johnson (pro hac vice)
` michele.johnson@lw.com
`650 Town Center Drive, 20th Floor
`Costa Mesa, California 92626-1925
`Tel: +1.714.540.1235
`Fax: +1.714.755.8290
`
`Attorneys for Defendant Shaquille O’Neal
`
`4
`
`
`
`
`
`
`
`

`

`Case 1:22-cv-23753-KMM Document 191 Entered on FLSD Docket 05/08/2023 Page 6 of 6
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that on May 8, 2023, a true and correct copy of the foregoing was
`
`filed electronically with the Clerk of the Court, by using the CM/ECF system, causing a true and
`
`correct copy to be served on all counsel of record.
`
`By: /s/ Roberto Martínez
`Roberto Martínez
`
`
`
`
`
`
`
`
`
`
`
`
`
`5
`
`