J & J Sports Productions, Inc. v. Alekov et al

Filing 16

ORDER denying 14 The Plaintiff, J & J Sports Productions, Inc.'s Motion for Entry of Clerk's Default against the Defendants Kristian V. Alekov, Tiffany J. Alekov, and WM Enterprises, d/b/a Ultra Naples. The Plaintiff is given leave to file a new motion for Clerk's Default after properly filled out returns are filed with the Court. Signed by Magistrate Judge Sheri Polster Chappell on 10/18/2011. (LMH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
J & J SPORTS PRODUCTIONS, INC., as
Broadcast Licensee of the November 13, 2010,
Pacquaio/Margarito Broadcast,
Plaintiff,
-vs-

Case No. 2:11-cv-363-FtM-29SPC

KRISTIAN V. ALEKOV, individually, and as
officer, director, shareholder, and/or principal of
WM Enterprises LLC, d/b/a Ultra Naples, a/k/a
ULTRA NIGHTCLUB, DAVID P. EDENFIELD,
individually, and as officer, director, shareholder,
and/or principal of WM Enterprises LLC, d/b/a
Ultra Naples, a/k/a ULTRA NIGHTCLUB,
TIFFANY J. ALEKOV, individually, and as officer,
director, shareholder, and/or principal of WM
Enterprises LLC, d/b/a Ultra Naples a/k/a ULTRA
NIGHTCLUB, WM ENTERPRISES LLC, doing
business as Ultra Naples, also known as ULTRA
NIGHTCLUB,
Defendants.
______________________________________

ORDER
This matter comes before the Court on the Plaintiff, J & J Sports Productions, Inc.’s Motion
for Entry of Clerk’s Default against the Defendants Kristian V. Alekov, Tiffany J. Alekov, and WM
Enterprises, d/b/a Ultra Naples (Doc. #14) filed on October 13, 2011. Under Fed. R. Civ. P. 55(a),
default is justified “[w]hen a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise appear by affidavit or otherwise, the clerk shall enter the party’s default.”
The Plaintiff moves for a Clerk’s Default against the Defendants, Kristian Alekov, Tiffany
J. Alekov, and WM Enterprises, d/b/a Ultra Naples, d/b/a Ultra Nightclub. The Plaintiff filed a

Return of Service for each Defendants (Docs. # 8, 9, 10). However, upon review of the Returns, the
Court cannot determine that service in this instance was effectual. Each Return states “I Edwin
Cintron being duly sworn, depose and say that on the 30th day of August, 2011 at 6:30pm, I:
individually served the within named person with a true copy of this summons, complaint . . . .”
Cintron also stated that “after numerous attempts a neighbor at 9669 Blue Stone Circle,ultimately
confirmed that the Defendant is out of town until the end of August on vacation. Gate guard
confirms the Defendant has not been seen in a while.”
Generally, a return has the name of the individual served inserted into the Return where the
Plaintiff merely states “. . . individually served the within named person . . . .” As an example, the
Plaintiff filed an unexecuted Return of Service (Doc. # 7) on August 8, 2011. In the unexecuted
Return of Service, the Plaintiff states plainly that service could not be executed on David P.
Edenfield rather than stating service could not be executed on the within named person.
The information provided by the Plaintiff in the Returns is therefore somewhat contradictory
and does not provided the Court with a clear statement that service was effective on each of the
named Defendants. Thus, based upon the evidence presented to the Court, it cannot be determined
and in fact appears that service in the case was ineffectual. Therefore, the Motion for a Clerk’s
Default is due to be denied.
Accordingly, it is now
ORDERED:
The Plaintiff, J & J Sports Productions, Inc.’s Motion for Entry of Clerk’s Default against
the Defendants Kristian V. Alekov, Tiffany J. Alekov, and WM Enterprises, d/b/a Ultra Naples (Doc.

-2-

#14) is DENIED. The Plaintiff is given leave to file a new motion for Clerk’s Default after properly
filled out returns are filed with the Court.
DONE AND ORDERED at Fort Myers, Florida, this

Copies: All Parties of Record

-3-

18th

day of October, 2011.