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

Filing 69

ORDER granting 66 Plaintiffs' Motion for Entry of Clerk's Default against Defendant Steven A. Lippson, as Legal Guardian of Seth Lippson. The Clerk is directed to enter a Clerk's default against Defendant Steven A. Lippson, as Legal Guardian of Seth Lippson. Signed by Magistrate Judge Carol Mirando on 5/15/2017. (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 STEVEN LIPPSON,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiffs’ Motion for Entry
of Clerk’s Default against Defendant Steven A. Lippson (“Lippson”), as Legal
Guardian of Seth Lippson (Doc. 66) filed on May 12, 2017. Plaintiffs seek a Clerk’s
entry of default as to Lippson.
Affidavit of Process Server.

Doc. 66.

On May 11, 2017, Plaintiffs filed an

Doc. 65.

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).
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 the complaint to the
individual personally.

Fed. R. Civ. P. 4(e)(2)(A).

Here, the Affidavit of Process

Server states that on April 18, 2017, a process server for S&W Process Service
personally served Lippson by delivering a true copy of the Summons in a Civil Action,
the Second Amended Petition for Declaratory Judgment, and Exhibits A-F to
Lippson, at 858 Benton Station Road, TN 37307. Doc. 65 at 1.

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

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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.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiffs’ Motion for Entry of Clerk’s Default against Defendant Steven

A. Lippson, as Legal Guardian of Seth Lippson (Doc. 66) is GRANTED.
2.

The Clerk is directed to enter a Clerk’s default against Defendant Steven

A. Lippson, as Legal Guardian of Seth Lippson.
DONE and ORDERED in Fort Myers, Florida on this 15th day of May, 2017.

Copies:
Counsel of record

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