PNC Equipment Finance, LLC v. IKZ, Inc. et al

Filing 21

ORDER granting 20 Plaintiff's Motion for Entry of Clerk's Default. The Clerk of Court is directed to enter Clerk's Default against Defendants IKZ, Inc. and Ivan J. Kovacevic. Signed by Magistrate Judge Carol Mirando on 4/2/2014. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PNC EQUIPMENT FINANCE, LLC, a
Delaware limited liability company,
Plaintiff,
v.

Case No: 2:13-cv-763-FtM-29CM

IKZ, INC. and IVAN J.
KOVACEVIC,
Defendants.
ORDER
Before the Court is Plaintiff’s Motion for Entry of Clerk’s Default (Doc. 20) filed
on March 21, 2014.

Plaintiff PNC Equipment Finance, LLC (“PNC”) moves

pursuant Federal Rule of Civil Procedure 55(a), for entry of a Clerk’s default against
Defendants IKZ, Inc. (“IKZ”) and Ivan J. Kovacevic (“Kovacevic”) for failure to
respond to the Second Amended Complaint. Doc. 14. For the reasons that follow,
the Motion is due to be granted. 1
Pursuant to Rule 55(a), Federal Rules of Civil Procedure, “[w]hen a party
against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
enter the party’s default.” Fed. R. Civ. P. 55(a). Prior to directing the Clerk to enter
a default, the Court must first determine whether the Plaintiff properly effected
The Court previously denied Plaintiff’s Motion for Clerk’s Default for failure to
provide a memorandum of law in support of its request, pursuant to Local Rule 3.01(a). Doc.
19.
1

service of process.

United States v. Donald, No. 3:09-cv-147-J-32HTS, 2009 WL

1810357, *1 (M.D. Fla. June 24, 2009).
Service on an individual can be made by any manner accepted in the state or
by “delivering a copy of the summons and of the complaint to the individual
personally.”

Fed. R. Civ. P. 4(e)(1), (e)(2)(A).

Section 48.031, Florida Statutes,

provides that “[s]ervice of original process is made by delivering a copy of it to the
person to be served with a copy of the complaint, petition, or other initial pleading or
paper. . . .” Fla. Stat. § 48.031(1)(a). Service on a corporation can be made by any
manner accepted in the state or by “by delivering a copy of the summons and of the
complaint to an officer, a managing or general agent, or any other agent authorized
by appointment or by law to receive service of process[.]” Fed. R. Civ. P. 4(h)(1)(A),
(e)(1). Section 48.081, Florida Statutes, provides a hierarchy for service of process
upon a corporation. A private corporation may be served by serving process on the
president, vice president, or other head of the corporation, and in the absence of any
such persons, on other corporate employees, including any officer or director. Fla.
Stat. § 48.081(1)(a)-(d).
The Return of Service (Doc. 9) shows that Kovacevic was personally served
with the Summons, Complaint, and Amended Complaint on November 12, 2013, at
3900 Mannix Drive, Unit 116, Naples, Florida, 34113. A separate Return of Service
(Doc. 8) shows that IKZ was served with the Summons, Complaint, and Amended
Complaint on the same day at the same location, with corporate service effected upon
Kovacevic as the President of IKZ.

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In this case, the Complaint (Doc. 1) and Amended Complaint (Doc. 7) were
dismissed by the Court for lack of subject matter jurisdiction without prejudice to
Plaintiff filing an amended complaint within seven days of the Court’s Orders. Docs.
4, 13. Plaintiff filed its Amended Complaint and Second Amended Complaint on
November 5, 2013, and December 5, 2013, respectively. Docs. 7, 14. The Returns
of Service show that the Complaint and Amended Complaint were served on
November 12, 2013, while the Second Amended Complaint was served by U.S. Mail
on December 5, 2013, according to the pleading’s Certificate of Service. Doc. 14 at 7.
The Court finds that service of process was properly effected as to all
Defendants, because the Summons, Complaint, and Amended Complaint were served
on Kovacevic individually and as President of IKZ. Further, Federal Rule 5(a)(2)
provides that no service is required on a party who is in default for failing to appear
unless the pleading asserts a new claim for relief against a party.

The Second

Amended Complaint was identical to the Amended Complaint, except for the
allegations regarding citizenship of the parties.

Compare Doc. 7 with Doc. 14.

Because the Second Amended Complaint did not contain any new claims for relief,
PNC was permitted to serve the Second Amended Complaint via mail. Fed. R. Civ.
P. 5(a)(2) & (b)(2)(C).
The Second Amended Complaint was served on Defendants via mail on
December 5, 2013. Doc. 14. Pursuant to Rule 12(a)(1)(A), Federal Rules of Civil
Procedure, a defendant must serve an answer within 21 days after being served with

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the summons and complaint. Defendants have failed to do so within the time period;
therefore, entry of Clerk’s default is appropriate.
ACCORDINGLY, it is hereby
ORDERED:
Plaintiff's Motion for Entry of Clerk’s Default (Doc. 20) is GRANTED; and the
Clerk of Court is directed to enter Clerk’s Default against Defendants IKZ, Inc. and
Ivan J. Kovacevic.
DONE and ORDERED in Fort Myers, Florida on this 2nd day of April, 2014.

Copies:
Counsel of record

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