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

Filing 76

ORDER granting 74 Plaintiffs' Motion for Entry of Clerk's Default against Defendant Joseph A. Tremblay. The Clerk is directed to enter a Clerk's default against Defendant Joseph A. Tremblay. Signed by Magistrate Judge Carol Mirando on 10/4/2017. (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 Joseph A. Tremblay (“Tremblay”) (Doc. 74) filed
on September 28, 2017.

Plaintiffs seek a Clerk’s entry of default as to Tremblay.

Doc. 74. On November 16, 2016, Plaintiffs filed a Petition for Declaratory Judgment
(“Petition”) against various Defendants including Tremblay. Doc. 1.
7, 2016, Tremblay filed his Answer to the Petition.

On December

Doc. 14. Plaintiffs subsequently

amended their pleading two more times, filing a Second Amended Petition for
Declaratory Judgment (“Second Petition”) on March 22, 2017. Doc. 59.

Plaintiffs

served the Second Petition upon Tremblay by mailing it to him on March 22, 2017.

Id. at 21.

On September 6, 2017, United States District Judge Sheri Polster

Chappell ordered Tremblay to show cause on or before September 13, 2017 why he

had not filed an amended answer to the Second Petition, or, alternatively, to file an
amended answer by that date.

Doc. 71.

As of this date, Tremblay has not

responded to the Order to Show Cause (Doc. 71) or filed his amended answer to the
Second Petition.
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).

Pursuant to Rule 15(a)(3) of the Federal Rules of Civil

Procedure, “any required response to an amended pleading must be made within the
time remaining to respond to the original pleading or within 14 days after service of
the amended pleading, whichever is later.” Fed. R. Civ. P. 15(a)(3).
Rule 5(a)(1) of the Federal Rules of Civil Procedure states that a pleading filed
after the original complaint must be served on every party.

Fed. R. Civ. P. 5(a)(1)(B).

A party may properly serve an amended pleading under Rule 5 by mailing the
amended pleading to the person’s last known address, “in which event service is
complete upon mailing.”

Fed. R. Civ. P. 5(b)(2)(C).

Here, Plaintiffs served the

Second Petition upon Tremblay by mailing it to his last known address.
21; see id.

Doc. 59 at

Tremblay has failed to file his amended answer within the time period

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permitted under Rule 15(a)(3) of the Federal Rules of Civil Procedure or Judge
Chappell’s Order to Show Cause (Doc. 71); 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 Joseph

A. Tremblay (Doc. 74) is GRANTED.
2.

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

A. Tremblay.
DONE and ORDERED in Fort Myers, Florida on this 4th day of October, 2017.

Copies:
Counsel of record
Unrepresented parties

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