Montgomery Bank, N.A. v. Hoolihan et al

Filing 60

ORDER denying as moot 51 Motion for Default; granting 57 Renewed Motion for Default. Signed by Magistrate Judge Carol Mirando on 8/30/2016. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MONTGOMERY BANK, N.A.,
Plaintiff,
v.

Case No: 2:16-cv-173-FtM-38CM

THOMAS P. HOOLIHAN, JR. ,
KERREY R. HOOLIHAN,
RIVERBEND GOLF & COUNTRY
CLUB, INC., VISION ONE
MANAGEMENT GROUP, INC.,
PIKE CREEK TURF FARMS,
INC., LEE COUNTY, STATE OF
FLORIDA, SOUTHERN GULF
EQUIPMENT RENTAL & SALES,
INC. and RIVERBEND
HOMEOWNERS ASSOCIATION
OF LEE COUNTY, INC.,
Defendants.
ORDER
Before the Court are Plaintiff Montgomery Bank, N.A.’s Motion for Default
against Defendants Riverbend Golf & Country Club, Inc. (“Riverbend”) and Vision
One Management Group, Inc. (“Vision One”) (Doc. 51); and Plaintiff’s Renewed
Motion for Default against Riverbend and Vision One (Doc. 57). The Motion for
Default (Doc. 51) is denied as moot. The Renewed Motion for Default (Doc. 57) is
granted.
It is “well established that a corporation is an artificial entity that can act only
through agents, cannot appear pro se, and must be represented by counsel.” Palazzo

v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985). Similarly, Local Rule 2.03(e)

of the Middle District of Florida provides, “a corporation may appear and be heard
only through counsel admitted to practice in the Court. . . .” The Court previously
provided Riverbend and Vision One until June 17, 2016 to retain counsel,
admonishing that “[f]ailure to do so could result in default.” Doc. 45. The Court
extended the time for Defendants to retain counsel until August 3, 2016. Doc. 56.
As of this date, Defendants have failed to comply with the Court’s orders, and thus
have not properly appeared to defend this action. See generally, docket; Doc. 57 at
2.
Accordingly, Plaintiff moves, pursuant Federal Rule of Civil Procedure 55(a),
for entry of Clerk’s default against Defendants, Riverbend and Vision One. Doc. 57
at 2.

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).

Although the Court previously denied Plaintiff’s motions to default as to

Riverbend and Vision One because service was made outside the registered agent’s
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statutory office hours (Doc. 33), Plaintiff since has properly served Defendants with
process a second time, on May 12, 2016, during the registered agent’s statutory office
hours. Docs. 38, 39, 57 at 1. In response, Defendants Thomas P. Hoolihan, Jr. and
Kerrey R. Hoolihan improperly filed pro se motions on behalf of the corporations to
quash service of process. Docs. 41, 42. The Court entered an order striking the
improperly filed motions and providing the corporate defendants additional time to
retain counsel, as noted herein. Doc. 45. No counsel has been retained, and no
appearance or responses to the Complaint have been filed. Thus, the Court finds
that a Clerk’s default should be entered against the Defendant Riverbend and Vision
One.
ACCORDINGLY, it is hereby
ORDERED:
1.

The Motion for Default (Doc. 51) is DENIED as moot.

2.

The Renewed Motion for Default (Doc. 57) is GRANTED. The Clerk is

directed to enter a Clerk’s Default against Riverbend Golf & Country Club, Inc. and
Vision One Management Group, Inc.
DONE and ORDERED in Fort Myers, Florida on this 30th day of August, 2016.

Copies:
Counsel of record

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