U.S. Bank National Association v. Sararo et al

Filing 91

ORDER denying without prejudice 87 Plaintiff's Motion for Default by the Clerk as to Defendant PNC Bank, N.A., Successor by Merger to National City Bank; granting 88 Plaintiff's Motion for Default by the Clerk as to Defendant Part ies in Possession Unknown Tenant #1 n/k/a Marissa Gorman. The Clerk is directed to enter a Clerk's Default against Defendant Parties in Possession Unknown Tenant #1 n/k/a Marissa Gorman. Signed by Magistrate Judge Carol Mirando on 4/26/2017. (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,
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, PARTIES IN
POSSESSION UNKNOWN
TENANT ’35;2 and SUMMER
PARHAM SARARO,
Defendants.
ORDER

This matter comes before the Court upon review of Plaintiff’s Motions for
Default by the Clerk (Docs. 87, 88) filed on April 24, 2017. Plaintiff seeks a Clerk’s
entry of default as to Defendants Parties in Possession Unknown Tenant #1 n/k/a
Marissa Gorman (“Gorman”) and PNC Bank, N.A., Successor by Merger to National
City Bank (“PNC Bank”).

Docs. 87, 88.

Plaintiff filed a Return of Service as to PNC

Bank on September 29, 2016 and a Return of Service as to Gorman on October 4,
2016.

Docs. 21, 29.
On September 26, 2016, Plaintiff filed a Verified Complaint for Foreclosure

(“Complaint”).

Doc. 1.

On October 19, 2016, Senior United States District Judge

John E. Steele dismissed the Complaint for lack of subject-matter jurisdiction and
directed Plaintiff to file an amended complaint.

Doc. 43.

On October 25, 2016,

Plaintiff filed an Amended Verified Complaint for Foreclosure (“Amended
Complaint”) against various defendants including Gorman and PNC Bank.

Doc. 46.

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.

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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 Gorman, the Federal Rules of Civil Procedure allow for personal
service upon an individual within a judicial district of the United States.
Civ. P. 4(e)(2)(A).

Fed. R.

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 or with someone of suitable age and discretion who resides there.”
Civ. P. 4(e)(2)(A),(B).

Fed. R.

Alternatively, the Court may follow “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.”

Fed. R. Civ. P. 4(e)(1).

In

Florida, service of original process may be made on an individual by leaving a copy of
the complaint, petition, or other initial pleading “at his or her usual place of abode
with any person residing therein who is fifteen years of age or older and informing
the person of their contents.”

Fla. Stat. § 48.031(1)(a).

Here, the Return of Service states that on October 1, 2016, a process server for
ATA Process, LLC delivered a true copy of the Summons, Notice of Lis Pendens, and
the Complaint with Exhibits A, B, C, D, E to Gorman’s 17 year old son, Aiden Gorman,
who also is a co-resident, at 285 Grande Way, Unit #604, Naples, FL 34110.
29.

Doc.

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.

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Eupierre, Case No. 12-20197-CIV, 2012 WL 2192438, at *2 (S.D. Fla. June 14, 2012).
Service of process therefore was properly effected under Rule 4(e) of the Federal Rules
of Civil Procedure.
Furthermore, Plaintiff properly served the Amended Complaint upon Gorman.
Doc. 88 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.
P. 5(a)(1)(B).

Fed. R. Civ.

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) is allowed 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, 46. 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 Gorman
by mailing it to Gorman’s last known address.

See Amarelis, 2014 WL 5454387, at

*3; Doc. 88 at 2.
Pursuant to Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure, a
defendant must serve an answer within 21 days after being served with the summons
and complaint.

Gorman 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.

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With regard to PNC Bank, service on a corporation or other unincorporated
association 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 655.0201(2) of the Florida Statutes outlines

service of process on a financial institutions and states: “A financial institution
authorized by federal or state law to transact business in this state may designate
with the Department of State a place or registered agent located within the state as
the financial institution’s sole location or agent for service of process, notice, levy, or
demand.”

Fla. Stat. § 655.0201(2).

If a financial institution has no registered agent

or service cannot be made in accordance with the above section, then “service may be
made to any officer, director, or business agent of the financial institution at its
principal place of business or at any other branch, office, or place of business in the
state.”

Fla. Stat. § 655.0201(3).
Here, it is not clear whether Plaintiff properly served PNC Bank pursuant to

Rule 4(h).

Fed. R. Civ. P. 4(h)(1)(A), (e)(1).

The Return of Service states that on

September 27, 2016, a process server for ATA Process, LLC delivered a true copy of
the Summons, Notice of Lis Pendens, and the Complaint with Exhibits A, B, C, D, E
to Noel Arteaga, as “universal banker” of the corporation, at 1915 N. Dale Maybry
Highway, Tampa, FL 33607.

Doc. 21.

Although Rule 4(h) provides various ways to

serve PNC Bank, Plaintiff does not explain which subsection of Rule 4(h) applies to
Plaintiff’s service of process upon PNC Bank.

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Doc. 87.

Plaintiff also does not

demonstrate that Noel Arteaga, as a universal banker of PNC Bank, is an agent or
officer permitted to receive process on behalf of PNC Bank under Rule 4(h).

Id.

ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff’s Motion for Default by the Clerk as to Defendant PNC Bank,

N.A., Successor by Merger to National City Bank (Doc. 87) is DENIED without
prejudice.
2.

Plaintiff’s Motion for Default by the Clerk as to Defendant Parties in

Possession Unknown Tenant #1 n/k/a Marissa Gorman (Doc. 88) is GRANTED.
3.

The Clerk is directed to enter a Clerk’s Default against Defendant Parties

in Possession Unknown Tenant #1 n/k/a Marissa Gorman.
DONE and ORDERED in Fort Myers, Florida on this 26th day of April, 2017.

Copies:
Counsel of record

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