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

Filing 17

ORDER granting 16 Plaintiff's Motion for Entry of Clerk's Default against Defendant Lisa Goldberg. The Clerk is directed to enter a Clerk's default against Defendant Lisa Goldberg. Signed by Magistrate Judge Carol Mirando on 6/28/2017. (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.,
JOHN DOES 1-5 and LISA
GOLDBERG,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion for Entry
of Clerk’s Default against Defendant Lisa Goldberg (Doc. 16) filed on June 27, 2017.
Plaintiff seeks a Clerk’s entry of default as to Defendant Lisa Goldberg (“Goldberg”).
Doc. 16.

On June 21, 2017, Plaintiff filed a Return of Service.

Doc. 15.

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.

Here, the Return of Service states that on May 30, 2017, a

process server for Legal Ease Process Service personally served Goldberg by
delivering a true copy of the Summons in a Civil Action, the First Amended Class
Action Complaint and Exhibit “A”, to Goldberg at 3333 West Commercial Blvd., #101,
Fort Lauderdale, FL 33309.

Doc. 15.

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 Rule 4(e)(2) of the Federal Rules of Civil Procedure.
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. Goldberg has failed to do so within the time period; therefore, the
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 Lisa

Goldberg (Doc. 16) is GRANTED.
2.

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

Goldberg.
DONE and ORDERED in Fort Myers, Florida on this 28th day of June, 2017.

Copies:
Counsel of record

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