Scotlynn USA Division, Inc. v. Z Top Logistics, Inc. et al

Filing 21

ORDER granting 15 Plaintiff's Motion for Entry of Clerk's Default Against Defendant Z Top Logistics, Inc.; granting 18 Plaintiff's Second Verified Motion to Enlarge Time for Service of Process under F.R.C.P. 4(m). The Clerk is directed to enter a Clerk's Default against Defendant Z Top Logistics, Inc. Plaintiff shall have up to and including May 1, 2017 to serve process upon Defendant Lyubov Marynova. Signed by Magistrate Judge Carol Mirando on 4/10/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SCOTLYNN USA DIVISION, INC.,
Plaintiff,
v.

Case No: 2:16-cv-606-FtM-99CM

Z TOP LOGISTICS, INC. and
LYUBOV MARYNOVA,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff's Motion for Entry
of Clerk’s Default Against Defendant Z Top Logistics, Inc. (“Z Top”) (Doc. 15) filed on
January 3, 2017 and Plaintiff’s Second Verified Motion to Enlarge Time for Service
of Process under F.R.C.P. 4(m) (Doc. 18) filed on February 7, 2017.
I.

Plaintiff's Motion for Entry of Clerk’s Default Against Z Top (Doc. 15)

Plaintiff seeks a Clerk’s entry of default as to Z Top.
an Affidavit of Service.

Doc. 15. Plaintiff filed

Doc. 9. Pursuant to Rule 55(a) of the 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
where the district court is located or where service is made 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).
Here, the Affidavit of Service states that on August 12, 2016, a process server
for Elite Process Serving and Investigations, Inc., delivered a true copy of the
Summons in a Civil Action, Civil Cover Sheet and Civil Action Complaint against
Motor Carrier Under 49 U.S.C. 14706 and for Other Relief upon Sofia Koval, a
manager, at 7935 West 59th Street, Suite B, Summit, IL 60501. Doc. 9.

Affidavits

by process servers constitute a prima facie showing that defendants have been served.

Udoinyion v. The Guardian Security, 440 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, Case No. 12-20197-CIV, 2012 WL 2192438, at *2 (S.D. Fla. June 14, 2012).
Service of process upon Z Top therefore was properly effected under Rule 4(h) of the
Federal Rules of Civil Procedure.

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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.
Z Top has failed to do so within the time period; therefore, the entry of Default
pursuant to Federal Rule of Civil Procedure 55(a) and Middle District of Florida Local
Rule 1.07(b) is appropriate.
II.

Plaintiff’s Second Verified Motion to Enlarge Time for Service of Process
under F.R.C.P. 4(m) (Doc. 18)

On August 3, 2016, Plaintiff filed a Complaint against Defendants.

Doc. 1.

On November 11, 2016, Plaintiff filed its first motion to extend time to serve process
upon Marynova.

Doc. 11. The Court granted the requested extension and allowed

Plaintiff to serve Marynova on or before January 30, 2017.

Doc. 14.

On February

7, 2017, Plaintiff filed the present motion, seeking a ninety (90) day extension of time
to serve process upon Defendant Lyubov Marynova (“Marynova”) because Marynova
is rarely in her office and has no expected date of return from her visit to Ukraine.
Doc. 18 at 3. Plaintiff seeks the extension of time to hire a private investigator to
locate and serve Marynova.

Id. at 4.

Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, a defendant
must be served within 90 days after the complaint is filed.

Fed. R. Civ. P. 4(m).

If

the plaintiff shows good cause for not serving a defendant within a specific time
period, the court “must extend the time for an appropriate period.”
4(m).

Fed. R. Civ. P.

While the Federal Rules of Civil Procedure do not define “good cause,” case

law has specified its limits.

For instance, good cause exists when some outside factor

rather than inadvertence or negligence prevented service.

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Lepone-Dempsey v.

Carroll Cty. Comm’rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (citation
omitted).

“Courts will look to ‘factors outside a plaintiff’s control, such as sudden

illness, natural catastrophe or evasion of service of process,’ to determine whether
[the plaintiff] satisfied the ‘good cause’ requirement.”

Gambino v. Village of

Oakbrook, 164 F.R.D. 271, 274 (M.D. Fla. 1995) (citations omitted). Even in the
absence of good cause, however, a district court has the discretion to extend the time
for service of process.

Lepone-Dempsey, 476 F.3d at 1281.

Here, the Court will grant the requested extension because Plaintiff shows that
despite making a number of attempts to locate Marynova, Plaintiff was unable to do
so because Marynova is out of the country.

Doc. 18 at 5.

The Court notes,

however, that Plaintiff filed the present motion eight days after its deadline to serve
Marynova expired and already had approximately 250 days to serve Marynova since
filing of the Complaint.

Docs. 1, 11.

As a result, the Court will not be inclined to

grant additional extensions beyond that provided by this Order absent extenuating
circumstances.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff's Motion for Entry of Clerk's Default Against Defendant Z Top

Logistics, Inc. (Doc. 15) is GRANTED.

The Clerk is directed to enter a Clerk’s

Default against Defendant Z Top Logistics, Inc.

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2.

Plaintiff’s Second Verified Motion to Enlarge Time for Service of Process

under F.R.C.P. 4(m) (Doc. 18) is GRANTED.

Plaintiff shall have up to and including

May 1, 2017 to serve process upon Defendant Lyubov Marynova.
DONE and ORDERED in Fort Myers, Florida on this 10th day of April, 2017.

Copies:
Counsel of record

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