Nancy Thomas v. Carnival Corporation, Doctor Elwi Sayed-Tanani, Nurse Mayam Wardee, Nurse Ninette Williams, Nurse Cheryl MacFarlane, Doctor Doe and Nurse Doe 1 through 3 – Continued

Lipcon, Margulies, Alsina & Winkleman, P.A

March 14, 2011

Nancy Thomas v. Carnival Corporation, Doctor Elwi Sayed-Tanani, Nurse Mayam Wardee, Nurse Ninette Williams, Nurse Cheryl MacFarlane, Doctor Doe and Nurse Doe 1 through 3 – Continued

Motion to Impress Service

After attempting to have the Plaintiff’s service of process quashed for the individually named Defendants, this motion sought the Court’s authority to have service impressed on these Defendants. Plaintiff’s argued that service of process should rightfully be impressed on the Defendants since the Plaintiff had served them in the manner most likely to afford them notice and an opportunity to be heard.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 10-22018-CIV-MARTINEZ/BROWN
NANCY THOMAS,
Plaintiff,

V.

CARNIVAL CORPORATION, DOCTOR ELWI
SAYED-TANANI, NURSE MARYAM WADEE,
NURSE NINETTE WILLIAMS, NURSE CHERYL
MACFARLANE, DOCTOR DOE and NURSE
DOE 1 THROUGH 3,
Defendants.
/

PLAINTIFF’S MOTION TO IMPRESS SERVICE ON DEFENDANTS DOCTOR ELWI SAYED-TANANI, NURSE MARYAM WADEE, NURSE NINETTE WILLIAMS AND NURSE CHERYL MACFARLANE

COMES NOW, the Plaintiff, Nancy Thomas, by and through undersigned counsel, and hereby files Plaintiff’s Motion to Impress Service on Defendants Doctor Elwi Sayed-Tanani, Nurse Maryam Wadee, Nurse Ninette Williams and Nurse Cheryl MacFarlane (hereinafter referred to as the “Medical Defendants”) and for good cause relies on the following memorandum of law. The Plaintiff also requests an expedited briefing schedule pursuant to Rule 7.1(E).

This action arises out of the personal injuries sustained to Plaintiff Nancy Thomas while a passenger aboard a Carnival Vessel, wherein the Plaintiff alleges that the Carnival medical staff failed to properly diagnose and/or treat Plaintiff’s burst appendix.

Plaintiff filed suit against Carnival and against Defendants Doctor Elwi Sayed-Tanani, Nurse Maryam Wadee, Nurse Ninette Williams, and Nurse Cheryl Macfarlane (hereinafter referred to as the “Medical Defendants”).[D.E. 1].The Medical Defendants were sued individually, as well as in their official capacity as employees of Carnival.

When the lawsuit was initiated, the Plaintiff did not have knowledge of where the Medical Defendants resided or whether they were at sea while working for their employer, Defendant Carnival Corporation (hereinafter “Carnival”). Thus, the Plaintiff effectuated service of process on the Medical Defendants through their employer, Carnival, on June 23, 2010.

On July 12, 2010, the Medical Defendants filed their Motion to Quash Service of Process [D.E. 14] arguing that service on the Medical Defendants at their place of employment was defective. The Plaintiff thereafter filed her Response in Opposition to Defendants’ Motion to Quash Service of Process [D.E. 21] on August 5, 2010. The Plaintiff’s Response requested this Honorable Court for an Order requiring the disclosure of the Defendants’ current and permanent addresses.[1] A decision by this Honorable Court on Defendants’ Motion to Quash Service of Process is still pending.

Herein, at all times material, the Medical Defendants have been represented by counsel Fowler, White, Burnett P.A. The fact that the Medical Defendants’ attorneys have appeared on their behalf shows that at all times material, consistent with due process, the Medical Defendants have had notice and an opportunity to respond.

Additionally, the Plaintiff filed a Notice of Lawsuit and Request to Waive Service of a Summons with the Court and forwarded a copy to the Medical Defendants care of Defendants’ counsel.

To date, Defendants’ counsel has not provided the Plaintiff with the Medical Defendants’ current and permanent addresses.

On February 16, 2011, Defendant Carnival’s Responses to Plaintiff’s Initial Discovery included the home addresses of the Medical Defendants, but also, the responses establish that 3 of the 4 Medical Defendants are currently at sea working for Carnival.See Defendant Carnival’s Responses to Plaintiff’s Initial Interrogatories, attached as Exhibit 1.

As a result, the only feasible means of service of process on these individuals is by serving Carnival (as was already accomplished).

Herein, Plaintiff moves this Honorable Court to impress service of process on the Medical Defendants, deeming service on Carnival as proper.

I. IN LIGHT OF THE MEDICAL DEFENDANTS CURRENT WHEREABOUTS AT SEA, ON ONE OF DEFENDANT CARNIVAL’S VESSELS, THE PLAINTIFF MOVES TO IMPRESS SERVICE.

Long-standing jurisprudence, including the United States Supreme Court decisions following Mullane v. Central Bank & Trust Co, 339 U.S. 306 (1950), establish that although the U.S. Constitution does not require any particular means of service of process, the method selected must be reasonably calculated to provide notice and an opportunity to respond. See Mullane, 339 U.S. at 314. (“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to be heard to present their objections”). The reasonableness and constitutional validity of any chosen method may be defended on the grounds that it is in itself reasonably calculated to inform those affected. Id. In proper circumstances, this broad principle unshackles the federal courts from anachronistic methods of service. See Rio Props. v. Rio Int’l Interlink, 284 F. 3d 1007 (9th Cir. 2002).

Herein, Defendant Carnival’s production makes clear that 3 of the 4 Medical Defendants are currently working at sea on Carnival vessels.As such, the only feasible means of service is by serving Carnival (as was previously done).

WHEREFORE, Plaintiff requests this Honorable Court to enter an Order granting Plaintiff’s Motion to Impress Service on Defendants Doctor Elwi Sayed-Tanani, Nurse Maryam Wadee, Nurse Ninette Williams and Nurse Cheryl MacFarlane.

II. MOTION FOR EXPEDITED BRIEFING SCHEDULE IN ACCORD WITH LOCAL RULE 7.1(E).

In accord with Local Rule 7.1(E), the Plaintiff respectfully request an expedited briefing schedule regarding the instant issue. The Plaintiff proposes that Defendants be given five (5) days to file their response, and the Plaintiff be allowed (3) days for a reply thereafter.

LOCAL RULE 7.1. CERTIFICATION

In accordance with Local Rule 7.1, counsel for Plaintiff contacted counsel for Defendants and have not yet received a response regarding Local Rule 7.1 certification.

 


[1] Rule 2.515(a) of the Florida Rules of Judicial Administration states in pertinent part: “The attorney may be required by the court to give the address of, and to vouch for the attorney’s authority to represent, the party.” Florida courts have interpreted this rule to give a court authority to require counsel to disclose the address of its client during the pendency of litigation for the proper administration of justice. Mercado v. Parent, 421 So. 2d 740 (Fla. 4th DCA 1982).