ADEBIYI v. FLORIDA DEPARTMENT OF HEALTH

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
ADENIKE ADEBIYI,
Plaintiff,
v. 	Case No. 4:25-cv-212-RH/MJF
FLORIDA DEPARTMENT OF
HEALTH, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
Because more than one year has elapsed since Plaintiff commenced
this civil action, and Plaintiff has failed to properly serve Defendants
John Tanner, Jack Abramson, and Miranda Bullington, the District
Court should grant Defendants’ motion to dismiss for insufficient service
of process.
B ACKGROUND
On November 7, 2024, Plaintiff, proceeding pro se, commenced this
civil action in the United States District Court for the Southern District
of New York. Doc. 1. Also on that date, the clerk of that court issued
summonses for Defendants. Doc. 3.
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A. 	Defendants’ First Motion to Dismiss
On 	January 	31, 	2025, 	Defendants 	Abramson, 	Bullington, 	and
Tanner filed a motion to dismiss asserting, inter alia, insufficient service
of process. Doc. 9. Defendants explained that Plaintiff’s service efforts
included the following:
• 	on some date not specified by Plaintiff or Defendants, the
United Parcel Service delivered a copy of the summons but
not the complaint to Abramson.
• 	on a date not specified by Defendants or Plaintiff, Plaintiff
sent by UPS a copy of the summons and complaint to Tanner’s
daughter’s residence.
• 	on a date not specified by Defendants or Plaintiff, Plaintiff
sent a copy of the summons and complaint to Bullington via
FedEx.
Doc. 9 at 4, 6, 8; see Docs. 36–39.
On April 25, 2025, United States District Judge Andrew L. Carter,
Jr. denied Defendants’ motion to dismiss without prejudice. Doc. 11. Also
on that date, pursuant to 28 U.S.C. § 1404, Judge Carter transferred this
action to the United States District Court for the Northern District of
Florida. Doc. 12.
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B. 	Defendants’ “Renewed” Motion to Dismiss
On December 30, 2025, Tanner, Abramson, and Bullington filed a
renewed motion to dismiss for insufficient service of process pursuant to
Rule 12(b)(5). Doc. 31. Plaintiff filed a response in opposition. Doc. 32. In
her response, Plaintiff did not address the sufficiency of service of
process.
D ISCUSSION
Under Rule 12(b)(5), a party may move for dismissal for insufficient
service of process. Service of process is a jurisdictional requirement, and
“a court lacks jurisdiction over the person of a defendant when that
defendant 	has 	not 	been 	served.” 	Hemispherx 	Biopharma, 	Inc. 	v.
Johannesburg Consol. Investments, 553 F.3d 1351, 1360 (11th Cir. 2008).
A plaintiff “is responsible for having the summons and complaint
served on the defendant” in accordance with Rule 4 of the Federal Rules
of Civil Procedure. Fitzpatrick v. Bank of New York Mellon, 580 F. App’x
690, 693 (11th Cir. 2014); Lepone-Dempsey v. Carroll Cnty. Com’rs, 476
F.3d 1277, 1280–81 (11th Cir. 2007). Unless service is waived, the person
effecting service must file proof of service with the district court. Fed. R.
Civ. P. 4(l)(1). When a defendant challenges the sufficiency of service, the
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serving party “bear[s] the burden of establishing its validity.” Aetna Bus.
Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435
(5th Cir. 1981); Reeves v. Wilbanks, 542 F. App’x. 742, 746 (11th Cir.
2013). “A defendant’s actual notice is not sufficient to cure defectively
executed service.” Albra v. Advan, 490 F.3d 826, 828 (11th Cir. 2007).
Under Rule 4(e)(2) of the Federal Rules of Civil Procedure, service
on an individual may be accomplished by:
• 	delivering a copy of the summons and of the complaint to the
individual personally;
• 	leaving a copy of the summons and complaint at the individual’s
dwelling or usual place of abode with someone of suitable age and
discretion who resides there; or
• 	delivering a copy of the summons and complaint to an agent
authorized by appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e)(2)(A)–(C).
Under Rule 4(e)(1), service can also be accomplished by “following
state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where
service is made.” Like the Federal Rules, Florida law provides that a
plaintiff may serve an individual by delivering a copy of the summons
and complaint to the person to be served or by leaving copies of the
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summons 	and 	complaint 	at 	a 	defendant’s 	residence. 	Fla. 	Stat. 	§
48.031(1)(a).
Plaintiff failed to file proof of service for each Defendant or an
executed waiver of service for Defendants. Although Plaintiff made at
least one attempt to serve each Defendant, Plaintiff does not dispute that
her efforts to serve Defendants did not comply with the Federal Rules or
Florida law. 	See Docs. 31, 32. Specifically, according to uncontested
affidavits 	filed 	by 	Defendants, 	Plaintiff 	did 	not 	personally 	serve
Defendants and she did not leave a copy of the summons and complaint
at Defendants’ respective residences. Consequently, Plaintiff has not
carried her burden of demonstrating that she complied with the service
requirements of Rule 4.
This case is more than one year old. Plaintiff still has not effected
service of process consistent with Rule 4(e), even though Defendants
made Plaintiff aware of this failure on at three occasions. See Docs. 9, 19,
31. The District Court, therefore, should dismiss this action.
CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	respectfully
RECOMMENDS that the District Court:
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1. 	GRANT Defendants’ motion to dismiss, Doc. 31,
2. 	DISMISS Plaintiff’s claims against Defendants Bullington,
Tanner, and Abramson.
3. 	REMAND this civil action for further proceedings regarding
the fourth Defendant—the Florida Department of Health.
At Pensacola, Florida, this 3rd day of March, 2026.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C.
§ 636(b)(1)(B), (C); Fed. R. Civ. P. 72(b). Objections to
these proposed findings and recommendations must be
filed within fourteen days of the date of the report and
recommendation. 	Any 	different 	deadline 	that 	may
appear 	on 	the 	electronic 	docket 	is 	for 	the 	court’s
internal use only and does not control. An objecting
party must serve a copy of the objections on all other
parties. A party who fails to object to the magistrate
judge’s findings or recommendations contained in a
report 	and 	recommendation 	waives 	the 	right 	to
challenge on appeal the District Court’s order based on
unobjected-to factual and legal conclusions. See 11th
Cir. R. 3-1; 28 U.S.C. § 636.
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