Motherway v. Teachers Insurance and Annuity Association of America

Filing 83

ORDER denying without prejudice 80 Request for Entry of Default. Signed by Magistrate Judge Carol Mirando on 12/20/2016. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SALLY D. MOTHERWAY,
Plaintiff,
v.

Case No: 2:15-cv-68-FtM-29CM

TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF
AMERICA - COLLEGE
RETIREMENT AND EQUITIES
FUND INDIVIDUAL &
INSTITUTIONAL SERVICES,
LLC,
Defendant.
ORDER
This matter comes before the Court upon review of Request for Entry of Default
(Doc. 80) filed on November 16, 2016. Plaintiff moves for entry of Clerk’s default
against Joseph E. Motherway for failure to plead or otherwise defend as provided by
Rule 55(a) of the Federal Rules of Civil Procedure. For the reasons that follow, the
motion is due to be denied without prejudice.
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.” Similarly, Middle District of Florida Local Rule 1.07(b)
provides:
When service of process has been effected but no appearance or response
is made within the time and manner provided by Rule 12, Fed. R. Civ.

P., the party effecting service shall promptly apply to the Clerk for entry
of default pursuant to Rule 55(a), Fed. R. Civ. P.
M.D. Fla. R. 1.07(b). 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, at *1 (M.D. Fla. June 24,
2009). Rule 4(c)(1) requires that a summons be served with a copy of the complaint,
and it is the plaintiff’s responsibility to ensure proper service of the summons and
complaint. Fed. R. Civ. P. 4(c)(1); see also Kelly v. Florida, 233 F. App’x 883, 885
(11th Cir. 2007).
Here, it is not clear whether service was properly effected. The Return of
Service states that on May 27, 2015, the Summons on a Third Party Complaint was
served upon Jean Motherway, as spouse, at Joseph E. Motherway’s usual place of
abode. Doc. 79. The Return of Summons does not indicate whether the Amended
Crossclaim naming Mr. Motherway as a Cross-Defendant accompanied the summons
that was served upon him. 1
ACCORDINGLY, it is hereby
ORDERED:
Request for Entry of Default (Doc. 80) is DENIED without prejudice.

1

Plaintiff’s complaint was filed against Teachers Insurance and Annuity Association

of America – College Retirement and Equities Fund (TIAA-CREF) only. Doc. 2. Later, the
Court substituted Teachers Insurance and Annuity Association of America – College
Retirement and Equities Fund Individual & Institutional Services, LLC (“TIAA-CREF
Institutional Services, LLC”) as Defendant. Doc. 17. On April 27, 2015, TIAA-CREF
Institutional Services, LLC filed a Counter/Cross-Claim in Interpleader, Declaratory
Judgment and Joinder of Necessary Parties to this Dispute, listing Joseph E. Motherway as
a Cross-Defendant. Doc. 14. On May 4, 2015, TIAA-CREF Institutional Services, LLC filed
an Amended Cross-Claim. Doc. 18.

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DONE and ORDERED in Fort Myers, Florida on this 20th day of December,
2016.

Copies:
Counsel of record

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