PNC Bank National Association v. Radno Investment Holdings, L.L.C. et al

Filing 27

ORDER granting 25 Plaintiff's Motion for Default Against Radno, Inc.; granting 26 Plaintiff's Motion for Default Against Radno Investment Holdings, L.L.C. The Clerk is directed to enter Clerk's Default against Defendants Radno, Inc. and Radno Investment Holdings, L.L.C. Signed by Magistrate Judge Carol Mirando on 6/3/2014. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PNC BANK NATIONAL
ASSOCIATION,
Plaintiff,
v.

Case No: 2:14-cv-149-FtM-29CM

RADNO INVESTMENT
HOLDINGS, L.L.C., RADNO, INC.,
PETER J. RADNO, PETER P.
RADNO and WHITE LAKE
COMMONS ASSOCIATION, INC.,
Defendants.
ORDER
Before the Court is Plaintiff’s Motion for Default Against Radno, Inc. (Doc. 25)
and Plaintiff’s Motion for Default Against Radno Investment Holdings, L.L.C. (Doc.
26).

Plaintiff PNC Bank, National Association (“PNC”) moves pursuant Federal

Rule of Civil Procedure 55(a), for entry of a Clerk’s Default against Defendants
Radno, Inc. and Radno Investment Holdings, L.L.C. (“Radno, L.L.C.”) for failure to
respond to the Complaint. For the reasons that follow, the Motions are due to be
granted.
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.” Prior to directing the Clerk to enter a default, the Court
must first determine whether the Plaintiff properly effected service of process. Kelly

v. Florida, 233 F. App’x 883, 884-85 (11th Cir. 2007); United States v. Donald, No.
3:09-cv-147-J-32HTS, 2009 WL 1810357, *1 (M.D. Fla. June 24, 2009).
Service on a corporation can be made by any manner accepted in the state or
“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).
As an alternative, process may be served on a registered agent of the corporation, or
an employee of the registered agent. Id. § 48.081(3)(a).
In support of its Motions for Clerk’s Default, PNC cites the Affidavits of Service
filed with the Court on April 14, 2014 (Docs. 9, 10), which reflect that Micahel A.
Baviello, Jr., as Registered Agent for Radno, Inc. and Radno, L.L.C., was served with
the Summons and Complaint on March 26, 2014, at 800 Seagate Drive, Suite 204,
Naples, Florida, 31403.

Affidavits by process servers constitute a prima facie

showing that defendants have been served. See Manufacturers Hanover Trust Co.

v. Ponsoldt, 51 F.3d 938, 941 (11th Cir. 1995) (letter from Florida Secretary of State
acknowledging acceptance of summons and complaint prima facie evidence of
substituted service on the defendant); Udoinyion v. The Guardian Security, 440 F.
App’x 731, 735 (11th Cir. 2011) (unsworn and unsigned letters insufficient to call into

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question prima facie evidence of service consisting of process server’s sworn return);

Burger King Corp. v. Eupierre, Case No. 12-20197-CIV, 2012 WL 2192438, *2 (S.D.
Fla. June 14, 2012).

Service of process was therefore properly effected as to

Defendants Radno, Inc. and Radno, L.L.C. under Federal Rule of Civil Procedure
4(h)(1)(A), (e)(1); Fla. Stat. § 48.081(3)(a).
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 the summons and
complaint. Radno, Inc. and Radno, L.L.C. have failed to do so within the time period;
therefore, entry of Clerk’s Default is appropriate.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff’s Motion for Default Against Radno, Inc. (Doc. 25) is

GRANTED; and the Clerk is directed to enter Clerk’s Default against Defendant
Radno, Inc.
2.

Plaintiff’s Motion for Default Against Radno Investment Holdings,

L.L.C. (Doc. 26) is GRANTED; and the Clerk is directed to enter Clerk’s Default
against Defendant Radno Investment Holdings, L.L.C.
DONE and ORDERED in Fort Myers, Florida on this 3rd day of June, 2014.

Copies:
Counsel of record

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