Panama 111 Responde to Big Bob's letter again .pdf
Original filename: Panama 111 Responde to Big Bob's letter again.pdf
Title: Microsoft Word - Response to Paynter
Author: James Harrington
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Case 5:11-cv-00032-RS-CJK Document 111 Filed 01/08/12 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
In Re SLEP-TONE
RESPONSE IN OPPOSITION TO MOTION OF DEFENDANT
ROBERT PAYNTER, SR. TO SET ASIDE DEFAULT JUDGMENT
The Plaintiff, Slep-Tone Entertainment Corporation (“Slep-Tone”), by its
undersigned counsel, hereby responds to the Letter to the Court from Defendant
Robert Paynter, Sr., dated November 14, 2011, but filed December 13, 2011,
which in substance appears to be a renewed informal motion to set aside the
default judgment (Doc. No. 87) entered against Mr. Paynter in this matter on
November 2, 2011. The Court has ordered the Plaintiff to respond to Mr. Paynter’s
contention that service in this matter was ineffective.
Mr. Paynter’s statements about where he was living at various times are
inconsistent with his contemporaneous statements about his living
The Plaintiff attempted to make substituted service upon Mr. Paynter by
delivering process to his last known address, and by leaving the process with Jack
Paynter, Mr. Paynter’s father. Mr. Paynter admits that his father lived at the
address at the time; that Mr. Paynter owns and has owned the house at that address
Case 5:11-cv-00032-RS-CJK Document 111 Filed 01/08/12 Page 2 of 6
during the entire relevant period; and that Mr. Paynter lived in that house for a long
period ending in March 2009 and lives there currently. He contends, however, that
the service upon him in this matter was ineffective because at the time of
substituted service, October 2010, he was living with his girlfriend, later his wife,
at another location.
Mr. Paynter’s contentions are stated without any verification and without
being declared to be true under penalty of perjury. By contrast, the evidence
submitted to the Court concerning the service attempt was declared to be true
under penalty of perjury.
Mr. Paynter’s contentions might be convincing if they were not entirely
inconsistent with the documentation the Plaintiff has presented and with his own
words at the time of the events he recounts. Mr. Paynter is quite specific in his
claim that he left the 9083 Seafair Lane residence in March 2009, at which point
his parents began to rent the residence from him as he lived separately, with his
girlfriend. Yet in April 2010, Mr. Paynter indicated, in a telephone call to the
Plaintiff’s counsel, that his parents were living with him and that he had received
the packet that the Plaintiff’s counsel had mailed to him at that address. (Doc. No.
104, Exh. A.)
The difference between the April 2010 telephone call and today is that Mr.
Paynter now finds it convenient to say that he was living apart from his parents at
Case 5:11-cv-00032-RS-CJK Document 111 Filed 01/08/12 Page 3 of 6
the time of service. Having provided no substantive evidence that he lived
elsewhere, and having changed his story conveniently, Mr. Paynter should have no
credibility with the Court on this matter.
Mr. Paynter has provided no documentation showing that his father is
not a person of suitable discretion—but in any event, Florida law does
not require that he be.
Mr. Paynter also contends that his father is not a person of “suitable ...
discretion” with regard to the servicing of legal papers, owing to dementia and
other afflictions that require high doses of narcotic medications. The Plaintiff has
nothing but sympathy for the Paynters’ situation. However, it is respectfully
pointed out that Mr. Paynter has failed to provide any documentation of his
father’s condition to counter the process server’s contention that Jack Paynter is a
person of suitable discretion.
Moreover, even if Jack Paynter is not a person of suitable discretion under
the federal standard, Florida law does not contain the same standard. Rather,
substituted service may be made upon any resident of the Defendant’s home who is
at least fifteen years of age. See Fla. Stat. § 48.031. Service may be made in the
manner specified under state law in the forum state. See Fed. R. Civ. P. 4(e)(1).
Since Jack Paynter is undoubtedly at least fifteen years of age, service upon him
under the Florida statute was not rendered ineffective by his infirmity.
Case 5:11-cv-00032-RS-CJK Document 111 Filed 01/08/12 Page 4 of 6
If the Court chooses to vacate its default judgment and quash the
service, it should grant the Plaintiff additional time to complete service.
The Plaintiff is of the view that given Mr. Paynter’s untruthful statements to
the Court and given the specific evidence presented by the Plaintiff that contradicts
Mr. Paynter’s unsworn contentions, the Court should not now hear Mr. Paynter
complain that he is being treated unfairly. As he is looking for equitable relief, he
must do equity in order to qualify for the relief he seeks, and he has sought instead
to misdirect the Court. Should the Court determine, however, that service upon
Mr. Paynter was ineffective, the Court should at least grant the Plaintiff additional
time, under Rule 4(m) to serve Mr. Paynter. The Plaintiff has acted in good faith
in relying upon what it believed to be valid service, based upon the best
information available from Mr. Paynter and other sources at the time. Where a
defendant has not been properly served, courts have discretion to quash service or
dismiss that defendant from the action. Umbenhauer v. Woog, 969 F.2d 25, 30 (3d
Cir. 1992). Dismissal is inappropriate, however, if there is a "reasonable prospect
that service may yet be obtained." Id. Where service is "insufficient but curable,"
courts "generally should quash the service and give the plaintiff an opportunity to
re-serve the defendant." Gregory v. United States, 942 F.2d 1498, 1500 (10th Cir.
1991) (quotation omitted). There is nothing of record that would suggest that Mr.
Paynter cannot be served now. If the Court is inclined to set aside the default and
Case 5:11-cv-00032-RS-CJK Document 111 Filed 01/08/12 Page 5 of 6
the default judgment and to quash the service, the Plaintiff respectfully requests 60
days in which to service Mr. Paynter.
Respectfully submitted this the 9th day of January, 2012.
HARRINGTON LAW, P.C.
By: s/James M. Harrington
James M. Harrington, N.C. State Bar No. 30005
Attorney for the Plaintiff
HARRINGTON LAW, P.C.
P.O. Box 403
Concord, NC 28026-0403
Case 5:11-cv-00032-RS-CJK Document 111 Filed 01/08/12 Page 6 of 6
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document is being filed on the date
indicated below using the Clerk’s CM/ECF System, which will send a Notice of
Electronic Filing to counsel of record in this matter:
WEYMAN W MCCRANIE, JR - email@example.com
KARL JEFFREY REYNOLDS - firstname.lastname@example.org
VINCENT BRIAN LYNCH - email@example.com
STEVEN MITCHELL DEVER - firstname.lastname@example.org
PATRICIA ROE FITZGERALD - email@example.com
CM/ECF non-participants are being served on the date indicated below by
depositing copies thereof as First Class Mail, postage prepaid, addressed as
BRAND X ENTERTAINMENT
69 MARIE CIR
CRAWFORDVILLE FL 32327-2248
PO BOX 1784
BRONSON FL 32621-1784
ROBERT L. PAYNTER, SR.
9083 SEAFAIR LN
TALLAHASSEE FL 32317‐8188
Date: January 9, 2012
s/ James M. Harrington