USA v. Blake

Filing 11

ORDER granting 10 Application to Clerk for Entry of Default. The Clerk is directed to enter Clerk's default against Defendant Jonathan D. Blake pursuant to Rule 55(a), Federal Rules of Civil Procedure. Signed by Magistrate Judge Carol Mirando on 2/6/2015.(ALB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No: 2:14-cv-478-FtM-38CM

JONATHAN D. BLAKE,
Defendant.
ORDER
Before the Court is Plaintiff’s Application to Clerk for Entry of Default
(“Application”) (Doc. 10), filed on December 22, 2014.

Defendant, Jonathan D.

Blake, has not filed a response to the Application and the time for doing so has
expired. Plaintiff moves, pursuant Federal Rule of Civil Procedure 55(a), for entry
of Clerk’s default against Defendant for failure to respond to the Complaint. For the
reasons that follow, the motion is 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 Plaintiff properly effected service of process. United

States v. Donald, No. 3:09-cv-147-J-32HTS, 2009 WL 1810357, *1 (M.D. Fla. June 24,

2009). Here, Defendant Jonathan D. Blake executed a Waiver of Service of Judicial
Process (Doc. 9), which was signed October 21, 2014 and filed on November 14, 2014.1
By signing the Waiver, Defendant acknowledged that he “understand[s] that a
judgment may be entered . . . if an answer or motion under Rule 12 is not served upon
[Plaintiff] within 60 days after August 22, 2014 . . . .” Doc. 9 at 1. The Court finds
that service of process was properly waived because, by signing and returning the
Waiver, Defendant acknowledged receipt of a copy of the Complaint filed in this case,
two copies of the Waiver and a means by which Defendant could return the Waiver
at no cost to Defendant, and “agree[d] to save the cost of a summons and an additional
copy of the complaint in this lawsuit by not requiring that [he] . . . be served with
judicial process in the manner provided by Rule 4.” Id. Defendant also agreed to
waive objections based on a defect in the summons or service. Id.
Pursuant to Rule 12(a)(1)(A)(ii), Federal Rules of Civil Procedure, a defendant
who timely has waived service must serve an answer within 60 days after the request
for waiver was sent. Here, the executed Waiver states that the date from which sixty
days is to be calculated is August 22, 2014. Doc. 9 at 1. Thus, Defendant was
required to file a response to the Complaint on or before October 21, 2014, the same
day the Waiver was executed. See Doc. 9 at 1. Defendant failed to file a response
or request additional time for doing so; therefore, entry of Clerk’s default is
appropriate.

1

The Declaration attached to the Waiver is dated November 2, 2014. Doc. 9 at 2.

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ACCORDINGLY, it is hereby
ORDERED:
Plaintiff’s Application to Clerk for Entry of Default (Doc. 10) is GRANTED.
The Clerk is directed to enter Clerk’s default against Defendant Jonathan D. Blake
pursuant to Rule 55(a), Federal Rules of Civil Procedure.
DONE and ORDERED in Fort Myers, Florida on this 6th day of February,
2015.

Copies:
Pro se Defendant
Counsel of record

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