PNC Bank, N.A. v. DBAK Holdings, LLC et al

Filing 43

ORDER granting 42 Plaintiff's Motion for Clerk's Default. The Clerk is directed to enter a Clerk's Default against Defendant DBAK Holdings, LLC ONLY. Signed by Judge Sheri Polster Chappell on 9/27/2013. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PNC BANK, N.A., as successor in
interest to RBC Bank (USA), as
successor in interest to Community
Bank of Naples, N.A.
Plaintiff,
v.

Case No: 2:13-cv-247-FtM-38UAM

DBAK HOLDINGS, LLC, PARKER
COMMONS OFFICE PARK
CONDOMINIUM ASSOCIATION
INC. and UNKNOWN OCCUPANTS,
Defendants.
/
ORDER1
This matter comes before the Court on Plaintiff's Motion for Clerk's Default (Doc.
#42) filed on September 26, 2013. Plaintiff, PNC Bank, N.A. pursuant to Federal Rules
of Civil Procedure 55 and Local Rule 1.07(b), moves for Clerk’s Default against
Defendant, DBAK Holdings, LLC (“DBAK”) for failure to respond to the Amended
Complaint. 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.”

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Plaintiff’s Motion states that DBAK was served with the Plaintiff’s Verified
Complaint on April 3, 2013, (Doc. #38), and with Plaintiff’s Amended Verified Complaint
on July 30, 2013. (Doc. #40). Plaintiff has filed an Amended Return of Service (Doc.
#38) and a Supplemental Certificate of Service (Doc. #40), indicating that DBAK was
served on these dates.
Pursuant to Fed R. Civ. P. 4(h), service upon a corporation is affected when:
[u]nless otherwise provided by federal law, service upon a
domestic or foreign corporation or upon a partnership or other
unincorporated association that is subject to suit under a
common name and from which a waiver of service has not
been obtained and filed, shall be effected:
(1) in a judicial district of the United States in the manner
prescribed for individuals by subdivision (e)(1), or by
delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of
process and, if the agent is one authorized by statute to
receive service and the statute so requires, by also mailing a
copy to the defendant. . .
A corporation may be served by serving process on the president, vice president,
the cashier, treasurer, secretary, general manager, any director, any officer or business
agent residing in the state. Fla. Stat. § 48.081(1)(a-d). The statute goes on to note that
“[i]f the address provided for the registered agent, officer, director, or principal place of
business is a residence or private mailbox, service on the corporation may be made ...
in accordance with § 48.031.”

Fla. Stat. § 48.031 governs the general service

procedures for serving process on an individual and provides that service may be made
by leaving copies of the complaint at the residence with any person “residing therein
who is 15 years of age or older and informing the person of their contents.” § 48.031,
Fla. Stat. See Brown Bark III, L.P. v. Confresi Torres, No. 09-22589-CIV, 2010 WL

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10363, *2 (S.D. Fla. 2010). The conditions imposed by Florida Stat. § 48.081 must be
strictly complied with. S.T.R. Industries, Inc. v. Hidalgo Corporation, 832 So. 2d 262,
263 (Fla. 3d DCA 2002); Richardson v. Albury, 505 So. 2d 521, 522-523 (Fla 2d DCA
1987).
In this case, Donna H. Keller, Registered Agent of DBAK Holdings, LLC, was
personally served at 794 105th Avenue North, Naples, Florida, 34108, on April 3, 2013
and then provided a copy of the Verified Amended Complaint at this address on July 30,
2013. To date, DBAK Holdings, LLC has failed to file an answer or otherwise respond
to the Verified Amended Complaint and the time to do so has expired. Thus, good
cause exists to grant the Motion for a Clerk’s Default.
Accordingly, it is now
ORDERED:
Plaintiff's Motion for Clerk's Default (Doc. #34) is GRANTED.

The Clerk is

directed to enter a Clerk’s Default against Defendant DBAK Holdings, LLC ONLY.
DONE and ORDERED in Fort Myers, Florida this 27th day of September, 2013.

Copies: All Parties of Record

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