Wittgenfeld et al v. Lockett et al

Filing 29

ORDER denying without prejudice 26 Motion for Entry of Clerk's Default. Plaintiffs must demonstrate that Defendants Diane Shipley, Don Shipley, and Extreme Seal Adventures were properly served no later than June 9, 2017. Failure to comply with this Order may result in Defendants Diane Shipley, Don Shipley, and Extreme Seal Adventures being dismissed from this action pursuant to Fed. R. Civ. P. 4(m) for failure to timely serve Defendants. Signed by Magistrate Judge Mac R. McCoy on 5/18/2017. (JTM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DALLAS WITTGENFELD and DANIEL
A. BERNATH,
Plaintiffs,
v.

Case No: 2:17-cv-202-FtM-99MRM

ROBERT LOCKETT, DIANE SHIPLEY,
DON SHIPLEY and EXTREME SEAL
ADVENTURES,
Defendants.
/
ORDER
This cause comes before the Court on Plaintiffs’ Motion for Entry of Clerk’s Default
(Doc. 26) filed on March 24, 2017. Plaintiffs contend that Defendants Diane Shipley, Don
Shipley, and Extreme Seal Adventures have been served and have failed to plead or otherwise
defend this case. (Id. at 1-2). Plaintiffs request entry of a clerk’s default against Diane Shipley,
Don Shipley, and Extreme Seal Adventures. (Id.).
Pursuant to 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.” Prior to directing the Clerk to
enter a default, however, the Court must first determine whether Plaintiffs properly effectuated
service of process. See Chambers v. Halsted Fin. Servs., LLC, 2:13-cv-809-FTM-38, 2014 WL
3721209, at *1 (M.D. Fla. July 28, 2014). Plaintiffs have the burden of establishing effective
service of process. See Zamperla, Inc. v. S.B.F. S.R.L, No. 6:13-cv-1811-Orl-37KRS, 2014 WL
1400641, at *1 (M.D. Fla. Apr. 10, 2014).
Service for individuals is governed by Fed. R. Civ. P. 4(e). The Rule states:

[A]n individual . . . may be served in a judicial district of the United States by:
(1) following 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; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual
personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with
someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to
receive service of process.
Fed. R. Civ. P. 4(e).
Additionally, Fed. R. Civ. P. 4(h) governs service of business entities. The Rule states
that an entity must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) 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 and – if the agent is one authorized by statute and the
statute so requires – by also mailing a copy of each to the defendant . . .
Fed. R. Civ. P. 4(h). Fed. R. Civ. P. 4(e)(1) provides that service may be made by “following
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.”
In this instance, Plaintiffs cite the Returns of Service (Docs. 14-16) filed on March 22,
2017 for the proposition that Defendants Diane Shipley, Don Shipley, and Extreme Seal
Adventures were properly served. (See Doc. 26 at 2). Upon review, however, the Court finds

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that Plaintiffs have not established effective service of process. See Zamperla, 2014 WL
1400641, at *1.
As to Diane Shipley and Don Shipley, the Returns of Service (Docs. 14-15) indicate that
they were served by “Posted Property.” Specifically, the Returns state that Defendants were
served:
By attaching a true copy of the Summons in a Civil Action and Complaint with the
date and hour of service endorsed thereon by me to a CONSPICUOUS PLACE on
the property of the within named person’s LAST KNOWN RESIDENCE at the
address of: 5701 Bar Neck Road, Cambridge, MD 21613 and Took Photographs
of the Posting & Property.
(Doc. 14 at 1; Doc. 15-1).
Upon review, however, Plaintiffs’ Motion fails to provide legal or factual support for the
proposition that service by “Posted Property” is effective service pursuant to Fed. R. Civ. P. 4(e).
(See id.). Without factual or legal support, the Court finds that Plaintiffs have not demonstrated
that service on Diane Shipley or Don Shipley was effective or that their motion should be
granted.
As to Extreme Seal Adventures, the Return of Service (Doc. 16) indicates that it was
served via:
TAMMY EDWARDS as OFFICE MANAGER who is Authorized to Accept
Service, by HAND DELIVERING a true copy of the Summons in a Civil Action
and Complaint with the date and hour of service endorsed thereon by me, at the
address of: 403 Sunburst Highway, Cambridge, MD 21613 and informed said
person of the contents therein, in compliance with the state statutes.
(Doc. 16 at 1).
Upon review, however, Plaintiffs’ Motion does not provide legal or factual support for
the proposition that service on Extreme Seal Adventures via an office manager is effective
service pursuant to Fed. R. Civ. P. 4(h). Without factual or legal support, the Court finds that

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Plaintiffs have not demonstrated that service on Extreme Seal Adventures was effective or that
their motion should be granted on this ground.
Because Plaintiffs have not demonstrated that they properly served Defendants Diane
Shipley, Don Shipley, or Extreme Seal Adventures, the Court finds that the Motion for Entry of
Clerk’s Default (Doc. 26) is due to be denied without prejudice to Plaintiffs’ ability to renew the
motion upon a showing of sufficient factual and legal support for the relief requested.
Accordingly, the Court hereby ORDERS as follows:
1) The Motion for Entry of Clerk’s Default (Doc. 26) is DENIED WITHOUT
PREJUDICE.
2) Plaintiffs must demonstrate that Defendants Diane Shipley, Don Shipley, and
Extreme Seal Adventures were properly served no later than June 9, 2017. Failure
to comply with this Order may result in Defendants Diane Shipley, Don Shipley, and
Extreme Seal Adventures being dismissed from this action pursuant to Fed. R. Civ. P.
4(m) for failure to timely serve Defendants.
DONE AND ORDERED in Fort Myers, Florida on May 18, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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