Opinion
CASE NO. 4:08-CV-62 (CDL).
September 2, 2009
ORDER
Presently pending before the Court are Defendant Ryan Williamson's Motion to Dismiss for lack of valid service (Doc. 24), Williamson's Motion for Leave to Take Depositions (Doc. 25), and Defendants' Motion for Attorneys' Fees and Expenses associated with Defendants' recent Motion to Compel (Doc. 23). Also before the Court is Plaintiff's request to take Williamson's deposition (Doc. 28). For the reasons set forth below, the Court denies the Motion to Dismiss but grants Williamson's Motion for Leave to Take Depositions and Defendants' Motion for Attorneys' Fees and Expenses. The Court denies Plaintiff's request to take Williamson's deposition.
DISCUSSION
I. Motion to Dismiss for Failure to Effect Valid Service of Process
Defendants previously filed a Motion to Dismiss based on Plaintiff's failure to serve the Complaint on Defendant Ryan Williamson. The Court exercised its discretion to extend the time for service of process and gave Plaintiff until August 3, 2009 to effect valid service on Williamson. On July 27, 2009 — within a week of the Court's order — Plaintiff attempted to serve Williamson, and he filed the Return of Service via the Court's electronic filing system on July 28, 2009. The Return of Service states that the process server left the Summons and Complaint at Williamson's "dwelling house or usual place of abode with a person of suitable age and discretion residing therein." (Return of Service, July 27, 2009.) The Return of Service further states that the process server left the Summons and Complaint with Denise Bunn. ( Id.)
On August 5, 2009, Williamson filed the present Motion to Dismiss, asserting that Denise Bunn does not reside at Williamson's dwelling house or usual place of abode, so service was improper under Georgia law. Williamson argues that Plaintiff's Complaint should be dismissed due to Plaintiff's failure to effect valid service on Williamson by the Court's August 3, 2009 deadline. After receiving the Motion to Dismiss notifying him of the alleged defects in his attempted service of Williamson, Plaintiff made another attempt to serve Williamson with the Summons and Complaint. The process server found Williamson at La Pareja Mexican Restaurant in Waverly Hall and served him in person there on August 18, 2009. Plaintiff asserts that he had faulty address information when he originally tried to serve Williamson because Williamson's home address is protected by law and because Williamson declined to provide his home address to Plaintiff.
The Court concludes that under the circumstances of this case it is appropriate to grant an extension such that the August 18, 2009 personal service of Williamson is considered timely. See Lepone-Dempsey v. Carroll County Comm'rs, 476 F.3d 1277, 1281-82 (11th Cir. 2007) (noting that district court has discretion to extend time for service of process). After the Court granted the original extension for service, Plaintiff attempted to serve Williamson well before the Court's August 3 deadline. Less than two weeks after he received notice that the July 27 service may not be sufficient, Plaintiff was successful in achieving personal service on Williamson. From this, the Court concludes that Plaintiff was reasonably diligent in attempting to serve Williamson and that the August 18 personal service of Williamson should thus be considered timely. Accordingly, the Court denies the Motion to Dismiss.
II. Williamson's Motion for Leave to Take Depositions
Plaintiff did not provide Williamson with initial disclosures as required under Federal Rule of Civil Procedure 26(a)(1), and he did not respond to Williamson's discovery requests, including interrogatories, until the Court ordered him to do so in its July 20, 2009 Order. Plaintiff subsequently identified three potential witnesses in his interrogatory responses: David Thompson, Bill Pollard and Jeremy Wright. Williamson asks the Court for leave to depose these newly identified witnesses who were not disclosed by Plaintiff during the discovery period in this action. Plaintiff does not object to the depositions. The Court grants Williamson leave to depose these three witnesses. The depositions shall be completed on or before September 14, 2009. The dispositive motions deadline remains September 17, 2009. The Court declines to award any fees or expenses related to Williamson's Motion for Leave to Take Depositions.
III. Defendants' Motion for Attorney's Fees and Expenses
IV. Plaintiff's Request to Take Williamson's Deposition
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CONCLUSION
As discussed above, Williamson's Motion to Dismiss for lack of valid service (Doc. 24) is denied. Williamson's Motion for Leave to Take Depositions (Doc. 25) is granted, and Defendants' Motion for Attorneys' Fees associated with Defendants' recent Motion to Compel (Doc. 23) is granted. Plaintiff's request to depose Williamson (Doc. 28) is denied.
IT IS SO ORDERED.