Anguelov v. Event Parking, Inc. et al
Filing
54
ORDER granting 53 Plaintiff's Motion for Clerk's Default. Clerk's Entry of Default (Doc. 39) is VACATED. The Clerk is directed to enter a Clerk's default against Defendants Kenneth Benson and Event Parking, Inc. Signed by Magistrate Judge Carol Mirando on 8/28/2017. (HJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KALOYAN ANGUELOV, for himself
and on behalf of those similarly
situated
Plaintiff,
v.
Case No: 2:16-cv-273-FtM-29CM
EVENT PARKING, INC. and
KENNETH BENSON,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion for Clerk’s
Default (Doc. 53) filed on August 23, 2017. Pursuant to Rule 55(a) of the Federal
Rules of Civil Procedure, Plaintiff seeks entry of Clerk’s default against Defendants
Event Parking, Inc. (“Event Parking”) and Kenneth Benson (“Benson”) (collectively,
“Defendants”). Doc. 53.
On April 12, 2016, Plaintiff filed a Complaint & Demand for Jury Trial
(“Complaint”) under the Fair Labor Standards Act (“FLSA”) against Defendants.
Doc. 1. Defendants, however, have not appeared in this matter since their counsel
withdrew as counsel of record with the Court’s permission on August 1, 2016. Doc.
27.
Defendants also have not responded to the Court’s Orders directing Event
Parking to retain counsel and Benson to notify the Court if he wishes to proceed pro
se.
Docs. 27, 34, 35.
As a result, on December 28, 2016, the undersigned
recommended entering a Clerk’s default against Defendants because they did not
comply with the Court’s Orders. Doc. 37. Senior United States District Judge John
E. Steele adopted the undersigned’s Report and Recommendation and directed the
Clerk to enter a default against Defendants.
Doc. 38 at 2-3. Judge Steele also
ordered Plaintiff to file a motion for default judgment within fourteen days of the
Order.
Id. at 3.
Accordingly, the Clerk entered a default as to Defendants on
January 17, 2017, and Plaintiff filed a motion for default judgment on January 31,
2017. Docs. 39, 40.
On April 14, 2017, Judge Steele denied without prejudice Plaintiff’s motion for
default judgment because the facts did not support that Event Parking is a covered
entity under the FLSA. Doc. 41 at 5. Judge Steele allowed Plaintiff to amend this
deficiency by filing an amended motion or filing and serving an amended complaint
that contains sufficient factual allegations.
Id. at 6. On May 5, 2017, Plaintiff
responded by filing an Amended Complaint & Demand for Jury Trial (“Amended
Complaint”). Doc. 44.
On May 31, 2017, Plaintiff filed a motion for Clerk’s default against
Defendants.
Doc. 45.
On June 1, 2017, the Court denied the motion as moot
because the Clerk already entered a default against Defendants on January 17, 2017.
Doc. 46 at 2. Nonetheless, the Court found that although Rule 5(a)(2) generally does
not require service on a party who is in default, Plaintiff must serve his Amended
Complaint pursuant to Rule 4 because the amended pleading materially altered the
claims originally alleged. Id. at 2-4.
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On June 29, 2017, Defendants filed Waivers of the Service of Summons. Docs.
51, 52. By signing and returning the Waivers, Defendants “agree[d] to save the
expense of serving a summons and complaint in this case,” and “waive[d] any
objections to the absence of a summons or of service.”
Id.
Defendants also
acknowledged that they must file an answer or a motion under Rule 12 within sixty
(60) days from June 12, 2017, and their failure to do so may result in a default being
entered against them. Id. As of this date, Defendants have not responded to the
Amended Complaint.
The Court first will vacate the Clerk’s default (Doc. 39) entered on January 17,
2017 because Plaintiff filed the Amended Complaint and served it upon Defendants
pursuant to Rule 4. Montgomery Bank, N.A. v. Alico Road Bus. Park, LP, No. 2:13cv-802-FtM-29CM, 2014 WL 757994, at *2 (M.D. Fla. Feb. 26, 2014) (citations
omitted) (“The filing of an amended complaint [] cures a party’s default as to the
superseded original complaint.”); Wane v. Loan Corp., No. 8:11-cv-2126-T-33AEP,
2012 WL 909461, at *1 (M.D. Fla. Mar. 16, 2012) (vacating the clerk’s default because
the court allowed the plaintiffs to file an amended complaint).
Pursuant to Rule 12(a)(1)(A)(ii) of the 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. Fed. R. Civ. P. 12(a)(1)(A)(ii). Here, although the
Waivers clearly state that Defendants must respond to the Amended Complaint on
or before August 11, 2017, Defendants have not responded at all. Docs. 51, 52. The
Court finds that entry of Clerk’s default is appropriate because Defendants did not
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respond to the Amended Complaint within the time permitted under Rule
12(a)(1)(A)(ii).
ACCORDINGLY, it is hereby
ORDERED:
1. Clerk’s Entry of Default (Doc. 39) is VACATED.
2. Plaintiff’s Motion for Clerk’s Default (Doc. 53) is GRANTED. The Clerk
is directed to enter a Clerk’s default against Defendants Kenneth Benson and Event
Parking, Inc.
DONE and ORDERED in Fort Myers, Florida on this 25th day of August, 2017.
Copies:
Counsel of record
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