Brito v. MARCELINO et al
| Carlos Brito |
| LUZ CELENIA MARCELINO, AIDA MIRANDA DE LA GUARDIA, TUTTO PASTA, INC. doing business as TUTTO PASTA and TUTTO PASTA DELI CORP. doing business as TUTTO PIZZA BEER HOUSE |
| 1:2025cv22262 |
| May 16, 2025 |
| U.S. District Court for the Southern District of Florida |
| Roy K Altman |
| Civil Rights: Americans with Disabilities - Other |
| 42 U.S.C. § 12182 Americans with Disabilities Act |
| None |
Docket Report
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This docket was last retrieved on September 29, 2025. A more recent docket listing may be available from PACER.
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Filing 20
ORDER. The Clerk of Court is directed to CLOSE this case. All pending deadlines are TERMINATED, and any pending motions are DENIED as moot. Signed by Judge Roy K. Altman on 9/29/2025. See attached document for full details. (ebz)
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| Filing 19 NOTICE of Voluntary Dismissal as to Defendants, LUZ CELENIA MARCELINO and AIDA MIRANDA DE LA GUARDIA by Carlos Brito (Perez, Anthony) |
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Filing 18
PAPERLESS ORDER GRANTING the Plaintiff's #17 Motion for Extension of Time to Perfect Service. In our last 16 Order to Show Cause, we expressed our "serious[ ] doubt" that the Plaintiff's process server had "miraculously happened to find a clerical employee authorized to accept service for two [unserved] individual Defendants." That doubt seems to have been warranted. Although we gave the Plaintiff the option of defending the legal validity of the service he already attempted, he's instead asked for more time to effect service under Florida law. We find sufficient cause to grant his Motion. The Plaintiff explains that the unserved Defendants seem not to have updated the mailing addresses associated with their allegedly noncompliant property, that his skip trace didn't uncover a new service address, and that he needs more time to complete a Florida Automated Title Information Data System search. By September 15, 2025, then, the Plaintiff must serve the remaining Defendants and file proof of service on the docket. We won't grant further extensions of time. Meanwhile, we'll administratively CLOSE this case. Signed by Judge Roy K. Altman on 8/15/2025. (es00)
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| Filing 17 Plaintiff's MOTION for Extension of Time TO COMPLY WITH COURT'S ORDER and Response to Order to Show Cause re 16 Order,,,,,,,,,,,,,,, Set/Reset Deadlines,,,,,,,,,,,,,, by Carlos Brito. Responses due by 8/28/2025. (Attachments: #1 Exhibit A, #2 Text of Proposed Order)(Perez, Anthony) |
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Filing 16
ORDER TO SHOW CAUSE. The plaintiff in a civil action must serve its summons and complaint on each defendant within 90 days of filing the complaint. See Fed. R. Civ. P. 4(m). The Plaintiff filed his #1 Complaint on May 16, 2025, giving him until August 14, 2025, to perfect service. Since initiating this case, the Plaintiff has dismissed two of the four Defendants, leaving Defendants Luz Celenia Marcelino and Aida Miranda de la Guardia. These two remaining Defendants allegedly own the commercial property that (the Plaintiff says) violates the ADA. Compl. 4, 10, 17. The Plaintiff filed #4 #5 Returns of Service on the two remaining Defendants. The Returns say that the process server substitute-served the Defendants by serving a "front desk clerk" supposedly authorized to accept service for both Defendants, at those Defendants' "usual place of [w]ork." The "front desk clerk" supposedly works at 1757 SW 3rd Avenue, Miami, FL 33129, but that address doesn't appear anywhere in the Complaint. Rather, the Complaint alleges that the remaining Defendants own a property at 1749 SW 3rd Avenue, and the dismissed Defendants owned properties at 1753 SW 3rd Avenue and 1763 SW 3rd Avenue. We seriously doubt that service was perfected. As far as we can tell, the Returns are saying that the process server went to an address about which we've been offered no information and miraculously happened to find a clerical employee authorized to accept service for two individual Defendants. Even if that's what actually happened, the Returns say that service was effected "in compliance with State Statutes"but that doesn't seem right. The Defendants are individuals. Under Florida law, individuals generally must be served personally. See Fla. Stat. 48.0341(1)(a). Substitute service on an individual may be made only on the individual's spouse (but only if the individual and the spouse "reside together in the same dwelling"), Fla. Stat. 48.031(2)(a), or, if the individual does "business as a sole proprietorship," on the person in charge of the individual's business if the plaintiff already made two attempts to serve the individual directly, Fla. Stat. 48.031(2)(b). We're not aware of any Florida law authorizing substitute service on an individual by serving that individual's employee. On top of that, even if we construed the Returns under Rule 4(e)(1), we're deeply skeptical that a front-desk clerical employee was "authorized by appointment . . . to receive service of process." See, e.g., Blue-Grace Logistics, LLC v. Harry Logistics, Inc., 2020 WL 10055354, at *1 (M.D. Fla. Dec. 7, 2020) (Scriven, J.) (denying motion for default judgment where there was no indication that a "Safety Manager" was authorized by appointment to receive service of process). By August 14, 2025, then, the Plaintiff must do one of two things. He must either: (1) file a notice on the docket explaining (with citations to supporting authority) why the Returns are valid and attaching a sworn affidavit from counsel verifying that the front-desk employee was in fact authorized by appointment to accept service; or (2) serve the remaining Defendants in a manner expressly authorized by Florida law (for example, by personal service) and file proof of service on the docket. If the Plaintiff fails to timely comply, we'll dismiss this case under Rule 41(b) without further notice. Signed by Judge Roy K. Altman on 7/17/2025. (es00)
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| Filing 15 NOTICE of Voluntary Dismissal as to Defendants, TUTTO PASTA, INC. D/B/A TUTTO PASTA, and TUTTO PASTA DELI CORP. D/B/A TUTTO PIZZA BEER HOUSE by Carlos Brito (Perez, Anthony) |
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Filing 14
PAPERLESS ORDER. The Plaintiff filed a #10 Notice of Settlement as to Defendants Tutto Pasta, Inc. and Tutto Pasta Deli Corp. Accordingly, by June 30, 2025, the Plaintiff must file a stipulation of dismissal as to these Defendants only. As to these Defendants only, all deadlines are TERMINATED. If the Plaintiff fails to timely complete the expected settlement, he may ask us to re-open the case or extend his time to file a stipulation of dismissal. If the Plaintiff fails to timely comply with this Order, we'll dismiss these Defendants under Rule 41(b) without further notice. Signed by Judge Roy K. Altman on 6/5/2025. (es00)
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| Filing 13 AFFIDAVIT signed by: Carlos Brito re #11 Certificate of Counsel, #8 Order of Requirements, by Carlos Brito (Perez, Anthony) |
| Filing 12 Plaintiff's Certificate of Other Affiliates by Carlos Brito identifying Other Affiliate Pablo Baez, AccessAble, Other Affiliate Joao C. Oliveira, Other Affiliate Joao C. Oliveira for Carlos Brito (Perez, Anthony) |
| Filing 11 CERTIFICATE of Counsel re #8 Order of Requirements, by Anthony Joseph Perez on behalf of Carlos Brito (Perez, Anthony) |
| Filing 10 NOTICE of Settlement as to Defendants, TUTTO PASTA, INC. D/B/A TUTTO PASTA, and TUTTO PASTA DELI CORP. D/B/A TUTTO PIZZA BEER HOUSE by Carlos Brito (Perez, Anthony) |
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Filing 9
ORDER IN CASES WITH MULTIPLE DEFENDANTS. Signed by Judge Roy K. Altman on 5/22/2025. See attached document for full details. (ebz)
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Filing 8
ORDER REQUIRING VERIFIED CERTIFICATE OF COUNSEL REGARDING PRIOR ADA FILINGS AND VERIFIED AFFIDAVIT REGARDING VISITS TO PROPERTY OR USE OF SERVICE. Statement of Claim due by 5/30/2025. Signed by Judge Roy K. Altman on 5/22/2025. See attached document for full details. (ebz)
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| Filing 7 SUMMONS (Affidavit) Returned Executed on #1 Complaint, with a 21 day response/answer filing deadline pursuant to Fed. R. Civ. P. 12 by Carlos Brito. TUTTO PASTA DELI CORP. served on 5/19/2025, response/answer due 6/9/2025. (Perez, Anthony) |
| Filing 6 SUMMONS (Affidavit) Returned Executed on #1 Complaint, with a 21 day response/answer filing deadline pursuant to Fed. R. Civ. P. 12 by Carlos Brito. TUTTO PASTA, INC. served on 5/19/2025, response/answer due 6/9/2025. (Perez, Anthony) |
| Filing 5 SUMMONS (Affidavit) Returned Executed on #1 Complaint, with a 21 day response/answer filing deadline pursuant to Fed. R. Civ. P. 12 by Carlos Brito. AIDA MIRANDA DE LA GUARDIA served on 5/19/2025, response/answer due 6/9/2025. (Perez, Anthony) |
| Filing 4 SUMMONS (Affidavit) Returned Executed on #1 Complaint, with a 21 day response/answer filing deadline pursuant to Fed. R. Civ. P. 12 by Carlos Brito. LUZ CELENIA MARCELINO served on 5/19/2025, response/answer due 6/9/2025. (Perez, Anthony) |
| Filing 3 Summons Issued as to LUZ CELENIA MARCELINO, AIDA MIRANDA DE LA GUARDIA, TUTTO PASTA DELI CORP., TUTTO PASTA, INC.. (blc) |
| Filing 2 Clerks Notice of Judge Assignment to Judge Roy K. Altman. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Enjolique A. Lett is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. (blc) |
| Filing 1 COMPLAINT against LUZ CELENIA MARCELINO, AIDA MIRANDA DE LA GUARDIA, TUTTO PASTA DELI CORP., TUTTO PASTA, INC.. Filing fees $ 405.00 receipt number AFLSDC-18457062, filed by Carlos Brito. (Attachments: #1 Civil Cover Sheet, #2 Summon(s), #3 Summon(s), #4 Summon(s), #5 Summon(s))(Perez, Anthony) |
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