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

Filing 60

ORDER granting 58 Plaintiffs' Motion for Entry of Clerk's Default against Defendant Julie Lippson. The Clerk is directed to enter a Clerk's Default against Defendant Julie Lippson. The Second Amended Petition for Declaratory Judgment (Doc. 59) is deemed as the operative complaint in this matter. Signed by Magistrate Judge Carol Mirando on 3/29/2017. (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 Default against Defendant Julie Lippson (Doc. 58) filed on March 22, 2017.
Plaintiffs seek a Clerk’s entry of default as to Defendant Julie Lippson (“Lippson”).
Doc. 58.

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

Judgment against various defendants including Lippson.

Doc. 10.

On February

17, 2017, Plaintiffs filed a Return of Service. 1 Doc. 41.
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
On March 20, 2017, Plaintiffs filed a motion to extend the deadline to serve process
upon Lippson pro nunc tunc because they served her on February 16, 2017, two days after
the deadline to serve her had passed. Doc. 54. The Court granted Plaintiffs’ motion and
deemed Plaintiffs’ service upon Lippson as timely served. Doc. 55.
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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, the Return of Service states that on February 16, 2017, a process server

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for S&W Process Service personally served Lippson by delivering a true copy of the
Summons in a Civil Action, Amended Petition for Declaratory Judgment, and
Exhibits A-E to Lippson, at 11500 2nd Ave., Punta Gorda, FL 33955.

Doc. 41.

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. Lippson has 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.
Furthermore, Plaintiffs filed an unopposed motion to file a second amended
petition because Plaintiffs sought to add a party and supplement their allegations.
Doc. 56.

Along with the motion, Plaintiffs provided a copy of a Second Amended

Petition for Declaratory Judgment (“Second Amended Petition”) for the Court’s
review.

Doc. 56-1. The Court granted Plaintiffs’ motion and also directed the Clerk

of Court to enter the Second Amended Petition (Doc. 56-1) as a separate docket entry.
Doc. 57 at 3.

Before the Clerk of Court docketed the Second Amended Petition

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pursuant to the Court’s Order, Plaintiffs separately filed a Second Amended Petition
for Declaratory Judgment (Doc. 59) with six exhibits (Docs. 59-1, 59-2, 59-3, 59-4, 595, 59-6).

Upon review of the file, the Court finds that the Second Amended Petition

for Declaratory Judgment (Doc. 59) is substantively the same as the Second Amended
Petition (Doc. 56-1). As a result, the Court will deem the Second Amended Petition
for Declaratory Judgment (Doc. 59) as the operative complaint in this matter.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiffs' Motion for Entry of Clerk's Default against Defendant Julie

Lippson (Doc. 58) is GRANTED.
2.

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

Lippson.
3.

The Second Amended Petition for Declaratory Judgment (Doc. 59) is

deemed as the operative complaint in this matter.
DONE and ORDERED in Fort Myers, Florida on this 29th day of March, 2017.

Copies:
Counsel of record

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