Safeco Insurance Company of Illinois et al v. Tremblay et al

Filing 46

ORDER granting 45 Plaintiffs' Motion for Entry of Clerk's Defaults against Defendants Raquel Maria Nunez and Romarrio Anthony Scott. The Clerk is directed to enter a Clerk's Default against Defendants Raquel Maria Nunez and Romarrio Anthony Scott. Signed by Magistrate Judge Carol Mirando on 3/6/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SAFECO INSURANCE COMPANY
OF ILLINOIS and SAFECO
INSURANCE COMPANY OF
AMERICA,
Plaintiffs,
v.

Case No: 2:16-cv-837-FtM-38CM

JOSEPH A. TREMBLAY, CODY
JAMES MORRISON, ROMARRIO
ANTHONY SCOTT, RAQUEL
MARIA NUNEZ, JULIE LIPPSON
and SETH LIPPSON,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiffs’ Motion for Entry
of Clerk’s Defaults against Defendants Raquel Maria Nunez and Romarrio Anthony
Scott (Doc. 45) filed on March 6, 2017. Plaintiffs seek a Clerk’s entry of default as
to Defendants Raquel Maria Nunez (“Nunez”) and Romarrio Anthony Scott (“Scott”).
Doc. 45.

On December 8, 2016, Plaintiffs filed an Amended Petition for Declaratory

Judgment against various defendants including Nunez and Scott.
December 21, 2016, Plaintiffs filed Returns of Service.

Doc. 10.

On

Docs. 19, 20.

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).
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 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, for Nunez, the Return of Service states that on December 13, 2016, a
process server for S&W Process Service delivered a true copy of the Summons in a
Civil Action, Amended Petition for Declaratory Judgment, and Exhibits A-E to Pedro

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Falcon, a co-resident who is fifteen years of age or older and was informed of the
contents therein, at 2842 Ryan Blvd., Punta Gorda, FL 33950. Doc. 19. For Scott,
the Return of Service states that on December 13, 2016, a process server for S&W
Process Service personally delivered a true copy of the Summons in a Civil Action,
Amended Petition for Declaratory Judgment, and Exhibits A-E to Scott at 25275
Rampart Blvd. Apt 808, Punta Gorda, FL 33983.

Doc. 20.

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).

Service of process

therefore was properly effected under Federal Rule of Civil Procedure 4(e)(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.

Nunez and Scott have failed to do so within the time period;

therefore, the 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.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiffs' Motion for Entry of Clerk's Defaults against Defendants Raquel

Maria Nunez and Romarrio Anthony Scott (Doc. 45) is GRANTED.
2.

The Clerk is directed to enter a Clerk’s Default against Defendants

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Raquel Maria Nunez and Romarrio Anthony Scott.
DONE and ORDERED in Fort Myers, Florida on this 6th day of March, 2017.

Copies:
Counsel of record

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