Wromas v. Cruz et al

Filing 83

ORDER denying 76 Motion for Entry of Default; denying 78 Motion for Default Judgment. The Clerk shall complete the forms to effectuate service upon Defendant Cruz. See Order for details. Signed by Judge John E. Steele on 5/31/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEITH WROMAS, JR.,
Plaintiff,
v.

Case No:

WILLIAM E. CRUZ
MATTOX, Sergeant,

and

2:17-cv-155-FtM-99MRM

FNU

Defendants.
ORDER
This matter comes before the Court on Pro Se Plaintiff's
Motion for a Clerk's Default (Doc. 76) filed on May 4, 2018, and
Pro Se Plaintiff’s Motion for Default Judgment (Doc. 78) filed on
May 4, 2018.

On May 11, 2018, Counsel for Defendant William Cruz

made a special appearance in response (Doc. 80) arguing the motions
for default should be denied because Cruz was never served in this
matter.
I.
On September 18, 2017, summons was returned unexecuted as to
Defendant Cruz because he no longer worked at that facility. 1 (Doc.
27). The special appointee provided a forwarding address for

1

The initial service attempts in this matter are unclear as
the record indicates that the September 18, 2017 summons was served
on the special appointee at DeSoto CI who returned service because
Defendant Cruz no longer worked at that facility.
The special
appointee then gave DeSoto CI as the forwarding address for
Defendant Cruz.

Defendant

Cruz

at

DeSoto

Correctional

Institute

(DeSoto

CI).

Service was executed on the special appointee at DeSoto CI on
September

28,

2017.

The

special

appointee

returned

service

unexecuted because Defendant Cruz was no longer employed at DeSoto
CI. (Doc. 36).

No forwarding address was provided after the

September 28, 2017 service.

On October 12, 2017, the Department

of Corrections (DOC) provided the Court with Defendant Cruz’s
current address. (Doc. 41).

However, there is no entry on the

docket sheet showing that Defendant Cruz was ever served with
Plaintiff’s complaint.
II.
Under Fed. R. Civ. P. 55(a), “[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.” However,
prior to directing the Clerk to enter a default, the Court must
first determine whether Plaintiff properly effected service of
process. ONPOWER, Inc. v. United Power Line Contractors, LLC, No.
2:15-cv-796-FTM-99MRM, 2016 WL 9049315, at *1 (M.D. Fla. Mar. 14,
2016) (citing

Chambers

v.

Halsted

Fin.

Servs.,

3721209, at *1 (M.D. Fla. July 28, 2014)).

LLC,

2014

WL

Plaintiff has the

burden of establishing effective service of process. See Zamperla,
Inc. v. S.B.F. S.R.L, 2014 WL 1400641, at *1 (M.D. Fla. Apr. 10,
2014).

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III.
Defendant Cruz argues the motions for default should be denied
and the case against him should be dismissed in accordance with
Fed. R. Civ. 4(m) because he has not been served.

Pursuant to

Rule 55(a), 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.

Those

Certain

Underwriters

at

Lloyd's, London v. Gone Country Motor Sports, Inc., No. 2:15-CV669-FTM-38CM, 2016 WL 3344846, at *1 (M.D. Fla. June 15, 2016)
(citing United States v. Donald, No. 3:09-cv-147-J-32HTS, 2009 WL
1810357, at *1 (M.D. Fla. June 24, 2009).

Plaintiff’s Motion for

a clerk’s default is denied because the record shows that Defendant
Cruz has never been served.
Moreover, a default judgment under Fed. R. Civ. P. 55(b) may
not be entered if a clerk’s default has not first been entered.

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Brantley v. Drug Enf't Admin., No. 2:12-CV-361-FTM-99, 2012 WL
6015591, at *1 (M.D. Fla. Dec. 3, 2012) (citing ABS–SOS Plus
Partners Ltd. v. Vein Assocs. of Am., Inc., WL 5191701 * 1–2 (M.D.
Fla. Dec. 10, 2008) (holding that a district court may enter a
default judgment against a properly served defendant who fails to
defend or otherwise appear pursuant to Federal Rule of Civil
Procedure 55(b)(2)).

The Court notes that a clerk's default has

not been entered against Defendant Cruz nor has he been properly
served.

Therefore, a default judgment would be improper at this

time. Brantley v. DEA, 2012 WL 6015591 *1 (M.D. Fla. Dec. 3, 2012).
While Defendant Cruz moves the Court to dismiss the claims
against

him

Plaintiff’s
served.

for

lack

control

of

that

service,
prevented

circumstances
Defendant

exist

Cruz

from

beyond
being

Under Fed. R. Civ. P. 4(m) the Court at its discretion

can extend time for service even if there is not good cause to do
so. Horenkamp v. Van Winkle & Co., Inc., 402 F. 3d 1129, 1131-32
(11th

Cir.

2005).

Consequently,

since

circumstances

beyond

Plaintiff’s control prevented service on Defendant Cruz, the Court
will allow additional time to effectuate service against Cruz.
Accordingly, it is hereby
ORDERED:
(1)

Pro Se Plaintiff's Motion for a Clerk's Default (Doc.

#76) is DENIED.

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(2)

Pro se Plaintiff’s Motion for Default Judgment (Doc.

#78) is DENIED.
(3)

To expedite service, the Clerk of Court is directed to

complete the necessary forms to effectuate service upon Defendant
Cruz.

Within THIRTY (30) DAYS from the date on this Order, the

United States Marshal shall mail one copy of the Civil Rights
Complaint, two copies of the Notice of Lawsuit and Request for
Waiver of Service of Summons, two copies of the Waiver of Service
of Summons, and one copy of this order to Defendant William Cruz
at his forwarding address. The Marshal shall fill in the date of
mailing in the blanks at the end of the Notice of Lawsuit and
Request for Waiver of Service of Summons that reads: “I affirm
that this request is being sent to you on behalf of the plaintiff,
this ______ day of ________.” The Marshal shall send Defendant a
stamped,

self-addressed

envelope

for

returning

the

Waiver

of

Service of Summons to the Court. All costs of mailing shall be
advanced by the United States
(4)

Defendant shall have THIRTY (30) DAYS from the date that

the Waiver of Service of Summons was sent to return the Waiver of
Service of Summons. If Defendant chooses to return the Waiver of
Service of Summons, he should use the addressed, stamped envelope
provided.

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(5)

If Defendant returns the Waiver of Service of Summons,

he has SIXTY (60) DAYS from the date that the Waiver of Service of
Summons was sent to answer or otherwise respond to the complaint.
(6)
Summons,

If Defendant does not return the Waiver of Service of
the

Marshal

will

be

directed

by

separate

order

to

personally serve him and charge the defendant for the costs of
service. Then, defendant shall then have only TWENTY (20) DAYS
from the date of service of process to answer or otherwise respond
to the complaint.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2018.

Copies:
Counsel of Record
SA: FTMP-2

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31st

day