United States of America v. Bieberdorf

Filing 8

ORDER granting 7 Plaintiff's Application and Declaration for Entry of Defendant's Default. The Clerk is directed to enter a Clerk's Default against Defendant Nancy J. Bieberdorf. Signed by Magistrate Judge Carol Mirando on 3/22/2017. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No: 2:17-cv-70-FtM-29CM

NANCY J. BIEBERDORF,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff’s Application and
Declaration for Entry of Defendant’s Default (Doc. 7), filed on March 16, 2017.
Plaintiff seek a Clerk’s entry of default as to Defendant Nancy J. Bieberdorf
(“Bieberdorf”).

Doc. 7.

On February 2, 2017, Plaintiff filed a Complaint against

Bieberdorf alleging failure to pay a debt owed to the United States.
On March 1, 2017, Plaintiff filed a Return of Service.

Doc. 1 at 1-2.

Doc. 6.

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, the Affidavit of Service states that on February 18, 2017, a process server
for Investigative Process Service, Inc. delivered a true copy of the Summons in a Civil
Action, Civil Cover Sheet and Complaint to Nancy Bieberdorf at 1200 W. Retta
Esplanada, Boat Slip C34, Punta Gorda, FL 33950-5377, and informed her of the
contents.

Doc. 6 at 2.

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

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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 Rule 4(e)(2), Federal Rules of Civil Procedure.

Furthermore, counsel for

Plaintiff avers that Bieberdorf is not in the military service of the United States of
America.

Doc. 7 at 5-6.

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.

Bieberdorf 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.

Plaintiff’s Application and Declaration for Entry of Defendant's Default

(Doc. 7) is GRANTED.
2.

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

J. Bieberdorf.
DONE and ORDERED in Fort Myers, Florida on this 22nd day of March, 2017.

Copies:
All parties of record

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