                                                                  [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                             FILED
                                   FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                    ________________________ ELEVENTH CIRCUIT
                                                                          SEP 20, 2011
                                            No. 11-10519                   JOHN LEY
                                        Non-Argument Calendar                CLERK
                                      ________________________

                                  D.C. Docket No. 1:10-cv-22112-AJ

MARC PIZARRO,
and all others similary situated under 29 USC 216(B),

llllllllllllllllllllllllllllllllllllllll                          Plaintiff–Appellant,

                                                  versus

VIDA CAFE, LLC,
d.b.a. Mamajuana Cafe,
EDUARDO CRUZ,
VICTOR OSORIO,

llllllllllllllllllllllllllllllllllllllll                          Defendants–Appellees.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (September 20, 2011)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
      Marc Pizarro appeals from the district court’s order denying his motion for

reconisderation of the district court’s sua sponte dismissal of his claims against

Victor Osorio for failure to timely effect service.

      Pizarro filed a Fair Labor Standards Act claim against his former employers

and obtained a default judgment against two of them. But the district court also

dismissed the claims against Osorio for failure to timely effect service. Pizarro

then filed a motion for reconsideration in which he said that he had timely served

Osorio. Pizarro attached a copy of the return of service to that motion. On the

return the process server checked a box to indicate that he had personally served

the defendant, but wrote in a blank on the form that he had served the defendant at

“c/o Mamajuana Cafe, 247 Dyckman Street New York, NY.” The district court

granted Pizarro’s motion for reconsideration and reinstated the case and ordered

Osorio to respond to the complaint by December 20, 2010.

      Shortly thereafter, the district court sua sponte dismissed the case against

Osorio for failure to properly effect service because it believed that Pizarro had

“served” Osorio by leaving the summons and complaint in the care of the

Mamajuana Cafe, which would be insufficient under Federal Rule of Civil

Procedure 4(e).

      Pizarro once more moved for reconsideration arguing that although the

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return said that Osorio had been served “c/o Mamajuana Cafe,” the process server

had in fact personally served Osorio. Pizarro also said that he was attaching a

copy of the process server’s supplementary affidavit to the motion and that he

would file the original with the court as soon as he received it in the mail. The

copy filed with the motion was blank, but the day after the motion was filed

Pizarro filed a signed and notarized copy of the process server’s supplementary

affidavit, which said that Osorio had been personally served.

      Two days after the supplementary affidavit was filed, the district court

denied Pizarro’s motion for reconsideration. In its order, the district court

referenced the unsigned affidavit but did not mention the signed affidavit that

Pizarro had filed. So once more Pizarro filed a motion for reconsideration as well

as a notice of appeal.

      We review an order denying a motion for reconsideration for abuse of

discretion. Equity Investment Partners, LP v. Lenz, 594 F.3d 1337, 1342 (11th

Cir. 2010). A district court abuses its discretion when its decision is based on

clearly erroneous factual findings. Goodman-Gable-Gould Co. v. Tiara

Condominium Ass’n, 595 F.3d 1203, 1210 (11th Cir. 2010). Based on the signed

affidavit that was filed in support of Pizarro’s second motion for reconsideration

(and referenced in that motion), it appears that service was properly made on the

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defendant and that the district court abused its discretion by basing its decision on

a clearly erroneous factual finding. Accordingly, we reverse and remand.

REVERSED and REMANDED.




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