Securities and Exchange Commission v. Palleschi et al

Filing 10

ORDER denying without prejudice #9 Motion for Clerk's Default. See Order for details. Signed by Magistrate Judge Nicholas P. Mizell on 9/9/2021. (SM)

Case 2:21-cv-00530-SPC-NPM Document 10 Filed 09/09/21 Page 1 of 2 PageID 57

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.

Case No. 2:21-cv-530-SPC-NPM

MICHAEL PALLESCHI and DAVID
LETHEM,
Defendants.
ORDER
Before the Court is Plaintiff’s Motion for Entry of Clerk’s Default Against
Defendant Michael Palleschi (Doc. 9). Defendant Palleschi has not responded to the
Complaint, and now the SEC requests the Court enter a clerk’s default against
Palleschi. (Doc. 9). For the reasons discussed below, the Court denies the motion
without prejudice.
Unless and until a party is held in default for failure to appear, every party is
entitled to service of all written motions. Fed. R. Civ. P. 5(a). And unless a party is
served by filing a motion with the Court’s electronic filing system, a certificate of
service must accompany the motion. Fed. R. Civ. P. 5(d)(1)(B). “Nothing in the text
of Rule 55 excuses the service requirement for requests for entry of default (as
distinguished from motions for default judgment), and Rule 5(a) on its face requires

Case 2:21-cv-00530-SPC-NPM Document 10 Filed 09/09/21 Page 2 of 2 PageID 58

such service.” PNC Equip. Fin., LLC v. Taos Ventures, LLC, No. 5:13-cv-529-OCPRL, 2014 WL 12625121, *1 (M.D. Fla. Mar. 21, 2014) (quoting Capitol Records
v. Carmichael, 508 F. Supp. 2d 1079, 1083 n.1 (S.D. Ala. 2007)); see also U.S. Bank,
N.A. as trustee for LSF8 Master Participation Tr. v. Tobin, 754 F. App’x 843, 846
(11th Cir. 2018) (affirming default judgment when defendants failed to show they
were not served with the motion for clerk’s default); Allstate Ins. Co. v. Airport Mini
Mall, LLC, No. 1:15-CV-1422-AT, 2015 WL 13333577, *1 (N.D. Ga. Nov. 23,
2015) (denying motion for clerk’s default that was not accompanied by a proper
certificate of service). Here, Plaintiff did not file a certificate of service with its
Motion for Clerk’s Default, and there is no other indication in the record that Plaintiff
served this motion on Defendant. (See Doc. 9). Accordingly, the Motion for Entry
of Default (Doc. 9) is DENIED without prejudice.
ORDERED in Fort Myers, Florida on September 9, 2021.

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