Scoma Chiropractic, P.A. v. All Care Consultants, Inc. et al

Filing 11

ORDER granting 10 Plaintiff's Motion for Entry of Clerk's Default against Defendant All Care Consultants, Inc. The Clerk is directed to enter a Clerk's default against Defendant All Care Consultants, Inc. Signed by Magistrate Judge Carol Mirando on 5/15/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SCOMA CHIROPRACTIC, P.A., a
Florida corporation, individually and
as the representative of a class of
similarly-situated persons
Plaintiff,
v.

Case No: 2:17-cv-183-FtM-99CM

ALL CARE CONSULTANTS, INC.
and JOHN DOES 1-5,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion for Entry
of Clerk’s Default against Defendant All Care Consultants, Inc. (Doc. 10) filed on May
12, 2017.

Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, Plaintiff

seeks entry of Clerk’s default against Defendant All Care Consultants, Inc. (“All
Care”).

Doc. 10.

On April 19, 2017, Plaintiff filed a Return of Service.

Doc. 9.

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).
Service on a corporation can be made by any manner accepted in the state
where the district court is located or “by delivering a copy of the summons and of the
complaint to an officer, a managing or general agent, or any other agent authorized
by appointment or by law to receive service of process[.]”
4(e)(1).

Fed. R. Civ. P. 4(h)(1),

Here, the Return of Service states that on April 7, 2017, a process server

from Legal Ease Process Service delivered a true copy of the Summons in a Civil
Action, the Class Action Complaint, and Exhibit “A,” to Jasmine Joa, as the
receptionist, at 3333 West Commercial Blvd., #101, Fort Lauderdale, FL 33309.
Doc. 9.

Jasmine Joa represented to the process server that she is authorized to

accept service for All Care.

Id. Affidavits by process servers constitute a prima

facie showing that defendants have been served. Udoinyion v. The Guardian Sec.,
F. App’x. 731, 735 (11th Cir. 2011) (holding that 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, No. 12-20197-CIV, 2012 WL
2192438, *2 (S.D. Fla. June 14, 2012).

Service of process therefore was properly

effected under Rules 4(h)(1)(B).
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 the complaint. All Care has failed to do so within the time period; therefore,
entry of Clerk’s default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure
and Middle District of Florida Local Rule 1.07(b) is appropriate.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff’s Motion for Entry of Clerk’s Default against Defendant All Care

Consultants, Inc. (Doc. 10) is GRANTED.
2.

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

Consultants, Inc.
DONE and ORDERED in Fort Myers, Florida on this 15th day of May, 2017.

Copies:
Counsel of record

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