Kennedy v. Tamiami Hotel LLC
ORDER granting 9 Plaintiff's Motion for Entry of Clerk's Default. The Clerk is directed to enter a Clerk's default against Tamiami Hotel LLC. Signed by Magistrate Judge Carol Mirando on 8/7/2017. (LS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICIA KENNEDY, individually
Case No: 2:17-cv-358-FtM-38CM
TAMIAMI HOTEL LLC,
This matter comes before the Court upon review of Plaintiff’s Motion for Entry
of Clerk’s Default (Doc. 9) filed on August 6, 2017. Plaintiff seeks a Clerk’s entry of
default as to Tamiami Hotel LLC. Doc. 9. Plaintiff filed a Return of Service. Doc.
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)
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,
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[.]” Fed. R. Civ. P. 4(h)(1),
4(e)(1). Section 48.081 of the Florida Statutes provides a hierarchy for service of
process upon a corporation. A private corporation may be served by serving process
on the president, vice president, or other head of the corporation, and in the absence
of any such persons, on other corporate employees, including any officer or director.
Fla. Stat. § 48.081(1)(a)-(d). As an alternative, process may be served on a registered
agent of the corporation, or an employee of the registered agent.
Fla. Stat. §
Here, the Return of Service states that on July 5, 2017, a process server for JT
Accurate Process Service served a true copy of the Summons in a Civil Action and
Complaint upon Eugenio Hernandez, who is authorized to accept on behalf of
Interamerican Corporate Services, LLC, which is the registered agent for Defendant,
Tamiami Hotel LLC. Doc. 8. A search of the Florida Department of State, Division
of Corporations’ website reveals that Tamiami Hotel LCC’s registered agent is
Interamerican Corporate Services, LLC. 1
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) (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, Case No. 12-20197-CIV, 2012 WL 2192438, at *2 (S.D.
Fla. June 14, 2012). Service of process upon Pine Haven therefore was properly
effected under Rule 4(h) 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
and complaint. Here, Tamiami Hotel LLC 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
Plaintiff's Motion for Entry of Clerk’s Default (Doc. 9) is GRANTED. The
Clerk is directed to enter a Clerk’s default against Tamiami Hotel LLC.
DONE and ORDERED in Fort Myers, Florida on this 7th day of August, 2017.
Counsel of record
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