Beerman v. Support Dogs, Inc. et al

Filing 29

ORDER granting 25 Motion for Entry of Clerk's Default Against Third-Party Defendant Susan Bluehs and Memorandum of Law in Support of Motion. The Clerk is directed to enter a Clerk's default against Third Party Defendant Susan Bluehs. Signed by Magistrate Judge Carol Mirando on 8/10/2017. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JUDY BEERMAN and THOMAS
BEERMAN, Wife
Plaintiffs,
v.

Case No: 2:17-cv-326-FtM-99CM

SUPPORT DOGS, INC.,
Defendant/Third
Party Plaintiff
SUSAN BLUEHS,
Third Party Defendant.
_________________________________/
ORDER
This matter comes before the Court upon review of the Motion for Entry of
Clerk’s Default Against Third-Party Defendant Susan Bluehs and Memorandum of
Law in Support of Motion (Doc. 25) filed on August 9, 2017. Plaintiff seeks a Clerk’s
entry of default as to Third Party Defendant Susan Bluehs. Doc. 25. On August 8,
2017, Third Party Plaintiff filed a Return of Service.
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.” Fed. R.
Civ. P. 4(e)(2)(A),(B). Here, the Return of Service states that on July 7, 2017, a
process server personally served Susan Bluehs by delivering a true copy of the
Summons and Complaint at the address of 800 Casa Ybel Rd. #7, Sanibel, Florida
33957. Doc. 22.
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.

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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. Susan Bluehs 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.

Motion for Entry of Clerk's Default Against Third-Party Defendant

Susan Bluehs and Memorandum of Law in Support of Motion (Doc. 25) is GRANTED.
2.

The Clerk is directed to enter a Clerk’s default against Third Party

Defendant Susan Bluehs.
DONE and ORDERED in Fort Myers, Florida on this 10th day of August, 2017.

Copies:
Counsel of record

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