Mid-Continent Casualty Company v. Delacruz Drywall Plastering & Stucco, Inc. et al

Filing 42

ORDER granting 40 Application for Clerk's Default against Delacruz Drywall Plastering & Stucco, Inc. The Clerk of Court is directed to enter a default against Delacruz Drywall Plastering & Stucco, Inc. Signed by Magistrate Judge Mac R. McCoy on 8/17/2017. (JTM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MID-CONTINENT CASUALTY
COMPANY, a foreign corporation,
Plaintiff,
v.

Case No: 2:16-cv-720-FtM-99MRM

DELACRUZ DRYWALL PLASTERING &
STUCCO, INC. and BEAZER HOMES
CORP.,
Defendants.
/
ORDER
Pending before the Court is the Application for Clerk’s Default against Delacruz Drywall
Plastering & Stucco, Inc. (Doc. 40) filed on July 24, 2017. Plaintiff requests that the Clerk of
Court enter a default against Defendant for its failure to respond to Plaintiff’s Complaint. (Id. at
1-2).
In evaluating Plaintiff’s request, the Court notes that the Clerk of Court previously
entered a default against Delacruz Drywall Plastering & Stucco, Inc. (Doc. 22) for Defendant’s
failure to respond to Plaintiff’s original Complaint. (See Doc. 19). In general, “[n]o service is
required on a party who is in default for failing to appear.” Fed. R. Civ. P. 5(a)(2). Nonetheless,
“a pleading that asserts a new claim for relief against such a party must be served on that party
under Rule 4.” (Id.). Here, Plaintiff filed an Amended Complaint to reference allegations raised
by Defendant Beazer Homes Corp. in the Third Amended Complaint from the parties’
underlying action. (See Doc. 34 at 1). Thus, the Court will address Plaintiff’s current request for
an entry of default against Defendant.

Pursuant to Fed. R. Civ. P. 55(a), “[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.” Prior to directing the Clerk to
enter a default, however, the Court must first determine whether Plaintiff properly effectuated
service of process. Chambers v. Halsted Fin. Servs., LLC, 2:13-cv-809-FTM-38, 2014 WL
3721209, at *1 (M.D. Fla. July 28, 2014). Plaintiff has the burden of establishing effective
service of process. See Zamperla, Inc. v. S.B.F. S.R.L, No. 6:13-cv-1811-Orl-37KRS, 2014 WL
1400641, at *1 (M.D. Fla. Apr. 10, 2014).
Fed. R. Civ. P. 4(h) provides the rules for serving a corporation. The Rule states that
corporations must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) 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 and – if the agent is one authorized by statute and the
statute so requires – by also mailing a copy of each to the defendant . . .
Fed. R. Civ. P. 4(h).
Fed. R. Civ. P. 4(e)(1) allows a defendant to be served within “a judicial district of the
United States by . . . following the state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or where service is made.”
See also Safeco Ins. Co. of Ill. v. Mobley, No. 6:12-cv-651-ORL-37DAB, 2012 WL 4932669, at
*1 (M.D. Fla. Oct. 17, 2012).
In this instance, the affidavit of service indicates that process was served on “JUSTIN
Delacruz as VICE PRESIDENT for Delacruz Drywall Plastering & Stucco, Inc., at the address
of: 551 Owen Avenue North, Suite 14, Lehigh Acres, FL 33971, and informed said person of

2

the contents therein, in compliance with state statutes.” (Doc. 40-1 at 2 (emphasis in original
omitted)). Fla. Stat. § 48.081 governs service on corporations in Florida. Under Fla. Stat. §
48.081(a), corporations may be served by serving the corporation’s “president or vice president,
or other head of the corporation.” Here, it appears that Plaintiff properly served Defendant
Delacruz Drywall Plastering & Stucco, Inc. by serving the vice president of the corporation. See
id. Moreover, Defendant has not pled or otherwise responded to this action, and the time to do
so has passed. See Fed. R. Civ. P. 55(a). Thus, Plaintiff’s Motion is due to be granted.
Accordingly, the Court hereby ORDERS that:
1) The Application for Clerk’s Default against Delacruz Drywall Plastering & Stucco,
Inc. (Doc. 40) is GRANTED.
2) The Clerk of Court is directed to enter a default against Delacruz Drywall Plastering
& Stucco, Inc.
DONE AND ORDERED in Fort Myers, Florida on August 17, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

3