David L. Harris, et al. v. Fort Pierce Police Department, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10727
Non-Argument Calendar
____________________
DAVID L. HARRIS,
SHONDA T. HARRIS,
Plaintiffs-Appellants,
versus
FORT PIERCE POLICE DEPARTMENT,
KENNY NORRIS,
Deputy Chief,
FORT PIERCE CITY MANAGER,
GAGLIANO,
Lt.,
JUAN ALVAREZ, et al.,
Police/C.S.U.,
Defendants-Appellees.
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2 Opinion of the Court 23-10727
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:22-cv-14233-AMC
____________________
Before R OSENBAUM , GRANT, and B RASHER , Circuit Judges.
PER CURIAM:
David and Shonda Harris, proceeding pro se, sued several de-
fendants under 42 U.S.C. § 1983 for violating their civil rights. The
district court dismissed the suit, so the Harrises appealed. But be-
cause the defendants were not properly served, the district court
did not have jurisdiction over the Harrises’ complaint. So it cor-
rectly dismissed the case. Thus, we affirm.
I.
The Harrises sued several defendants (including, briefly, a
police dog) in relation to their detention by Fort Pierce police in
2021. Roughly two and a half months later, the district court found
no information in the record that the Harrises served the defend-
ants, so it ordered the Harrises to serve them or show cause why
the case should not be dismissed for failure to perfect service. In
response, the Harrises filed notices of certified mail delivery. Later,
the defendants moved to quash service of process under Fed. R.
Civ. P. 12(b)(5). The district court granted the motion and dis-
missed the Harrises’ complaint. This appeal followed.
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23-10727 Opinion of the Court 3
II.
When a district court dismisses a complaint for insufficient
service of process, we review its legal conclusions de novo and its
factual finding for clear error. Fuqua v. Turner, 996 F.3d 1140, 1154
(11th Cir. 2021) (citing Albra v. Advan, Inc., 490 F.3d 826, 828–29
(11th Cir. 2007)). When the defendant challenges service of pro-
cess, the plaintiff bears the burden of establishing its validity. Aetna
Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d
434, 435 (5th Cir. 1981).
III.
A court does not have jurisdiction over a defendant who has
not been served. Hemispherx Biopharma, Inc. v. Johannesburg Consol.
Invs., 553 F.3d 1351, 1360 (11th Cir. 2008) (internal quotation marks
omitted) (quoting Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317
(11th Cir. 1990)). And a defendant’s actual notice does not “cure
defectively executed service.” Albra, 490 F.3d at 829 (citation omit-
ted). Moreover, the flexibility we extend to pro se litigants does not
excuse them from following procedural rules. Id. (quoting Loren v.
Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002)).
“[T]he plaintiff is responsible for having the summons and
complaint served within the time allowed” by “[a]ny person who
is at least 18 years old and not a party” to the action. Fed. R. Civ. P.
4(c). Here, service had to be effected by “following [Florida] state
law for serving a summons,” “delivering a copy of the summons
and of the complaint” personally to the defendants, “leaving a
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4 Opinion of the Court 23-10727
copy” at their abode with “someone of suitable age and discretion
who resides there,” or “delivering a copy of each to an agent au-
thorized by appointment or by law to receive service of process.”
Id. at 4(e). If the plaintiff’s requests, the court can order someone
to serve the defendant on behalf of the plaintiff. Id. at 4(c).
The Harrises point to nothing in the record suggesting they
delivered copies of the summonses and of the complaint to the de-
fendants personally, to any person at their abodes, or to any au-
thorized agent. Instead, their own filings suggest that they effected
service by certified mail. As a general matter, that’s not enough un-
der federal law. See Fed. R. Civ. P. 4(e). Nor is it enough under Flor-
ida law: a plaintiff may serve a defendant by certified mail, but only
if the defendant waives personal service. See Fla. R. Civ. P. 1.070(i);
Griffith v. Slade, 95 So. 3d 982, 984 (Fla. Dist. Ct. App. 2012) (“Flor-
ida Rule of Civil Procedure 1.070(i) provides that defendants may
accept service of process by mail and waive formal service.”). The
defendants did not waive personal service here.
And nothing in the record suggests that the Harrises re-
quested the district court to order service for them. The Harrises
argue for the first time in their reply brief that the district court
improperly refused to issue summonses because the Harrises had
not paid the filing fee. But this argument is refuted by the record.
The Harrises paid the filing fee, and the district court issued sum-
monses. But even though summonses were issued, the Harrises
never requested service by U.S. Marshal, instead attempting to
serve the defendants by certified mail.
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23-10727 Opinion of the Court 5
Because the Harrises did not properly serve the defendants,
the district court had no jurisdiction over their complaint. So it was
right to dismiss their complaint. And because it had no jurisdiction,
all the other issues in this appeal are moot. See County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979).
IV.
For the foregoing reasons, the district is AFFIRMED.
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