U.S. Bank National Association v. Sararo et al
Filing
65
ORDER granting 62 Plaintiff's Motion for Default by the Clerk. The Clerk is directed to enter a Clerk's Default against Defendant Alfredo J. Sararo, III. Signed by Magistrate Judge Carol Mirando on 12/8/2016. (HJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
U.S. BANK NATIONAL
ASSOCIATION, as Trustee Relating
to Chevy Chase Funding LLC
Mortgage Backed Certificates Series
2006-2
Plaintiff,
v.
Case No: 2:16-cv-733-FtM-99CM
CHRISTOPHER J. SARARO,
UNKNOWN SPOUSE OF
CHRISTOPHER J. SARARO,
ALFREDO J. SARARO, III ,
UNKNOWN SPOUSE OF
ALFREDO J. SARARO, III,
GRANDE EXCELSIOR AT THE
GRANDE PRESERVE
CONDOMINIUM ASSOCIATION,
INC., THE DUNES OF NAPLES
PROPERTY OWNERS
ASSOCIATION, INC., GRANDE
PRESERVE AT THE DUNES
COMMUNITY ASSOCIATION,
INC., CHICAGO TITLE
INSURANCE COMPANY, PNC
BANK, N.A., UNITED STATES OF
AMERICA DEPARTMENT OF
TREASURY, UNITED STATES
ATTORNEY, PARTIES IN
POSSESSION UNKNOWN
TENANT’35;1 and PARTIES IN
POSSESSION UNKNOWN
TENANT ’35;2,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff's Motion for
Default by the Clerk (Doc. 62) filed on December 6, 2016. Plaintiff seeks clerk’s entry
of default against Defendant Alfredo J. Sararo, III (“Sararo”).
Doc. 62.
On
September 26, 2016, Plaintiff filed a Complaint against thirteen defendants,
including Sararo (“Complaint”).
Doc. 1.
Return of Service as to Sararo.
Doc. 38.
On October 12, 2016, Plaintiff filed a
On October 19, 2016, United States
District Judge John E. Steele dismissed without prejudice the Complaint for lack of
subject matter jurisdiction and ordered Plaintiff to file an Amended Complaint. Doc.
43 at 5. On October 25, 2016, Plaintiff filed an Amended Complaint against thirteen
defendants, including Sararo (“Amended Complaint”).
Doc. 46.
Plaintiff states
that Plaintiff served a copy of the Amended Complaint on Sararo via U.S. mail on
October 27, 2016 and also filed a Certificate of Mailing that alleges Plaintiff’s service
by mail. Docs. 47, 62 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
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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).
With regard to an individual, the Federal Rules of Civil Procedure allow for
personal service upon an individual within a judicial district of the United States.
Fed. R. Civ. P. 4(e)(2)(A). The process server may deliver a copy of the summons and
complaint to the individual personally, or “at the individual’s dwelling or usual place
of abode with someone of suitable age and discretion who resides there.” Fed. R. Civ.
P. 4(e)(2)(A),(B).
Here, the Return of Service states that on October 4, 2016, a process server for
ATA Process, LLC personally delivered a true copy of the Summons in a Civil Action,
Proof of Service, Notice of Lis Pendens, Verified Complaint for Foreclosure, Parties,
Jurisdiction, and Venue, Verification, Exhibits A, B, C, D, E., Mortgage, Allonge to
Promissory Note, Notice of Default and Notice of Intent to Foreclose, Fair Debt
Collection Practices Act, Return Label, Warranty Deed, and Civil Cover Sheet,
County Where Claim for Relief Arose to Alfredo J. Sararo, III, an inmate at the
Charlotte County Jail, at 26601 Airport Road, Punta Gorda, FL 33982. Doc. 38.
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) (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).
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Service of process therefore was properly effected under Rule 4(e) of the Federal Rules
of Civil Procedure. Daughtry v. Williams, No. 2:12-cv-307-FtM-99SPC, 2012 WL
2872885, at *1 (M.D. Fla., July 12, 2012) (holding that personally delivering a copy of
the summons, pleadings, and motions filed in the action to the defendant incarcerated
at the county jail constitutes effective service under the Federal Rules of Civil
Procedure).
Plaintiff also properly served a copy of the Amended Complaint on Sararo by
mailing it to Sararo on October 27, 2016. Doc. 62 at 2. Rule 5(a)(1)(B) states that
a pleading filed after the original complaint must be served on every party unless
ordered otherwise by the Court. Fed. R. Civ. P. 5(a)(1)(B). Under Rule 5(b), a party
may serve an amended complaint by mailing it to the person’s last known address.
Fed. R. Civ. P. 5(b)(2)(C).
Service under Rule 5(b) applies when the amended
complaint does not assert new claims for relief. Amarelis v. Notter Sch. Of Culinary
Arts, LLC, No. 6:13-cv-54-Orl-31KRS, 2014 WL 5454387, at *3 (M.D. Fla. Oct. 27,
2014). Here, the Amended Complaint does not allege new claims or claims against
new parties.
Docs. 1, 45.
The Complaint and the Amended Complaint allege
Counts One of Foreclosure, Two of Equitable Lien, and Three of Breach of Note
against the same thirteen defendants.
Docs. 1, 46.
As a result, Plaintiff is
permitted to serve a copy of the Amended Complaint on Sararo by mailing it to
Sararo’s last known address. See Amarelis, 2014 WL 5454387, at *3; Doc. 47.
Pursuant to Rule 12(a)(1)(A), Federal Rules of Civil Procedure, a defendant
must serve an answer within 21 days after being served with the summons and
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complaint. Sararo has failed to do so within the time period; therefore, entry of
Clerk’s Default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure and
Middle District of Florida Local Rule 1.07(b) is appropriate.
ACCORDINGLY, it is hereby
ORDERED:
Plaintiff's Motion for Default by the Clerk (Doc. 62) is GRANTED. The Clerk
is directed to enter a Clerk’s Default against Defendant Alfredo J. Sararo, III.
DONE and ORDERED in Fort Myers, Florida on this 8th day of December,
2016.
Copies:
Counsel of record
Alfredo J. Sararo III pro se
180081 Lagos Way
Naples, FL 34110
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