Phoenix Entertainment Partners, LLC v. Entcom, Inc.

Filing 12

ORDER granting 11 Plaintiff's Renewed Motion for Entry of Clerk's Default. The Clerk is directed to enter a Clerk's Default against Defendant Entcom, Inc. d/b/a the Bottom Line. Signed by Magistrate Judge Carol Mirando on 10/11/2016. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PHOENIX ENTERTAINMENT
PARTNERS, LLC, a North Carolina
LLC
Plaintiff,
v.

Case No: 2:16-cv-557-FtM-99CM

ENTCOM, INC.,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff's Renewed Motion
for Entry of Clerk's Default (Doc. 11) filed on October 7, 2016. Pursuant to Rule
55(a) of the Federal Rules of Civil Procedure, Plaintiff seeks entry of clerk’s default
against Defendant, Entcom, Inc., for failure to defend. Doc. 11.
On July 14, 2016, Plaintiff filed a Complaint (Doc. 1) against Defendant, and
Defendant’s time to respond to Plaintiff’s Complaint (Doc. 1) has expired.

On

September 30, 2016, Plaintiff moved for entry of clerk’s default against Defendant.
Doc. 8.

The Court denied without prejudice Plaintiff’s motion (Doc. 8) because

Plaintiff did not file a Return of Service to show that proper service was effectuated
upon Defendant. Doc. 9. On October 7, 2016, Plaintiff filed a Return of Service and
the present motion for entry of clerk’s default against Defendant. Docs. 10, 11.
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).
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). If service cannot be made
on the registered agent, service of process is permitted on any employee at the
corporation’s principal place of business or any employee of the registered agent. Id.

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Here, the Return of Service states that on August 3, 2016, a process server
from Robert L. Jones, Inc. delivered a true copy of the Summons in a Civil Action,
Complaint and Jury Demand, Exhibit A, 1 and a witness fee check to Jeff Poole, the
co-president for Entcom, Inc., at 528 Penski Road, Venus, FL 33960.

Doc. 10.

Affidavits by process servers constitute a prima facie showing that defendants have
been served. Udoinyion v. The Guardian Sec., F. App’x. 731, 735 (11th Cir. 2011)
(holding that unsworn and unsigned letters insufficient to call into question prima

facie evidence of service consisting of process server’s sworn return); Burger King
Corp. v. Eupierre, No. 12-20197-CIV, 2012 WL 2192438, *2 (S.D. Fla. June 14, 2012).
Service of process therefore was properly effected under Federal Rule of Civil
Procedure 4(h)(1)(A), (e)(1); Fla. Stat. § 48.081(1)(a)-(d).
Pursuant to Federal Rule of Civil Procedure 12(a)(1)(A), a defendant must
serve an answer within 21 days after being served with the summons and complaint.
Defendant Entcom, Inc., has failed to do so within the time period; therefore, entry of
Clerk’s Default pursuant to Federal Rule of Civil Procedure 55(a) and Middle District
of Florida Local Rule 1.07(b) is appropriate.

1

Doc. 10.

It is not clear from the records which “Exhibit A” the Return of Service refers to.

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ACCORDINGLY, it is hereby
ORDERED:
Plaintiff's Renewed Motion for Entry of Clerk's Default (Doc. 11) is GRANTED.
The Clerk is directed to enter a Clerk’s Default against Defendant Entcom, Inc. d/b/a
the Bottom Line.
DONE and ORDERED in Fort Myers, Florida on this 11th day of October,
2016.

Copies:
Counsel of record

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