Universal Physician Services, LLC v. Del Zotto et al

Middle District of Florida, flmd-8:2016-cv-01274

ORDER: 1. DeLong and CSI's Counterclaims 85 are dismissed as to Mary E. Ludvik, Joseph G. Del Zotto, and Anthony M. Del Zotto. 2. DeLong and CSI's Counterclaims will proceed as to UPS, only. Signed by Judge Charlene Edwards Honeywell on 10/3/2019. (SG)

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PageID 5377 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNIVERSAL PHYSICIAN SERVICES, LLC, Plaintiff, v. Case No: 8:16-cv-1274-T-36JSS AMANDA DEL ZOTTO, ERIC DELONG, CLINICAL SERVICES, LLC, CLINICAL SERVICES INTERNATIONAL, CLINICAL SERVICES INTERNATIONAL, INC., CLINICAL SERVICES INTERNATIONAL, LLC, CSI, INC. and CSI, LLC, Defendants. ___________________________________/ ORDER This cause comes before the Court upon Defendants Eric DeLong ("DeLong") and Clinical Services Inc.'s ("CSI") Response to the Court's Order to Show Cause (Doc. 308). DeLong and CSI filed their Answer, Affirmative Defenses, and Counterclaims on March 16, 2017. The Counterclaims were brought against Plaintiff/Counter-Defendant Universal Physician Services, LLC ("UPS") and three individuals: Mary E. Ludvik, Joseph G. Del Zotto, and Anthony M. Del Zotto. Doc. 85 at p. 13. Although UPS has apparently been served with the Counterclaims as a Counter-Defendant, it did not appear to the Court that proper service was effected on Mary E. Ludvik, Joseph G. Del Zotto, and Anthony M. Del Zotto. Therefore, on September 16, 2019, the Court entered an Order to Show Cause, directing DeLong and CSI to show cause within fourteen days as to why the Counterclaims brought against Mary E. Ludvik, Joseph G. Del Zotto, and Anthony M. Del Zotto should not be dismissed for failure to comply with Federal Rule of Civil Procedure 4(m). PageID 5378 DeLong and CSI filed their response on October 1, 2019. The response provides as follows: 1. Undersigned counsel has attempted to ascertain from prior counsel any corrspandence [sic] related to service on the individuals but has been unable to retrieve any notes or service documents. 2. Counsel for the unserved defendants have appeared on behalf of the individuals, Anthony DelZotto and coordinated depositions of Anthony DelZotto. See Exhibit A. 1 3. It was not until the deposition took place and after the time frame under Rule 4(m) that undersigned counsel was informed by plaintiff/Counter-Defendant that they did not represent the individuals in the case. 4. No other service information can be found. Doc. 308 at p. 1 (footnote added). DeLong and CSI have failed to show that Mary E. Ludvik, Joseph G. Del Zotto, and Anthony M. Del Zotto were served in this case. Further, DeLong and CSI have failed to offer any reason as to why the Counterclaims against the three should not be dismissed for failure to comply with Rule 4(m). Therefore, the Counterclaims will be dismissed as to Mary E. Ludvik, Joseph G. Del Zotto, and Anthony M. Del Zotto. Accordingly, it is ORDERED that: 1. DeLong and CSI's Counterclaims (Doc. 85) are dismissed as to Mary E. Ludvik, Joseph G. Del Zotto, and Anthony M. Del Zotto. 2. DeLong and CSI's Counterclaims will proceed as to UPS, only. DONE AND ORDERED in Tampa, Florida on October 3, 2019. Copies to: All Parties and Counsel of Record 1 Exhibit A is a notice of taking deposition of Anthony Del Zotto, signed by DeLong and CSI's counsel, Alan Hamisch. 2