Fitzgerald v. United States Department of Agriculture Forest Service et al

Filing 60

ORDER granting 59 Plaintiff's Motion for Entry of Clerk's Default. Signed by Magistrate Judge Philip R. Lammens on 3/3/2016. (CAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
MICHELE RENEE FITZGERALD, an
unmarried woman
Plaintiff,
v.

Case No: 5:15-cv-367-Oc-CEMPRL

UNITED STATES DEPARTMENT OF
AGRICULTURE FOREST SERVICE,
MARIE M. CHERRY, WENDY S.
POAG, WAYNE S. SHOLDER, SR. ,
BARBARA A. SHOLDER, ANNE
SHOLDER, BILLY DON CAUSEY,
LAURA G. CAUSEY, REGIONS BANK,
KENNETH HOEQUIST, EULA
HOEQUIST, SUNTRUST BANK and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.
Defendants.

ORDER

Under Federal Rule of Civil Procedure Rule 55(a), Plaintiff Michele Fitzgerald requests
entry of a Clerk’s Default against Defendants Suntrust Bank (“Suntrust”) and Mortgage Electronic
Registration Systems, Inc. (“MERS”). (Doc. 59). On June 19, 2015, Plaintiff filed this action in
the Fifth Judicial Circuit in and for Marion County. (Doc. 2). She listed as Defendants the
United States Government Forest Service and several private persons and entities, including
Defendants Suntrust and MERS. Her single-count complaint sought a statutory way of necessity
against all defendants under Fla. Stat. § 704.01(2). (Doc. 2, pp. 4–7). On June 26, 2015, Suntrust

and MERS were properly served via their registered agent (Doc. 59, Ex. A1, A2). Fed. R. Civ.
P. 4(h)(1)(A–B); Fla. Stat. § 48.081(3)(a).
On July 23, 2015, the Forest Service removed this action to this Court under the Quiet Title
Act, 28 U.S.C. § 2409a. (Doc. 1). Plaintiff then filed an amended complaint where she added a
second cause of action against the Forest Service under the Quiet Title Act, but she retained her
original count under Fla. Stat. § 704.01(2) against, inter alia, Suntrust and MERS. Compare Doc.
2, ¶¶ 9–10 and pp. 4–7) with Doc. 46, ¶¶ 9–10 and pp. 8–9. In other words, the amended
complaint does not assert a “new claim” against Suntrust and MERS; thus, no additional service
was required as to Suntrust and MERS. See Fed. R. Civ. P. 5(a)(2) (“No service is required on a
party who is in default for failing to appear. But a pleading that asserts a new claim for relief
against such a party must be served on that party under Rule 4.”); Poitevint v. Dynamic Recovery
Servs., Inc., No. 3:10-CV-700-J-12TEM, 2011 WL 201493, at *2 (M.D. Fla. Jan. 20, 2011)
(“Review of the record indicates that both defendants were properly served a summons and copy
of the complaint and neither party has made an appearance. Since Defendant Dynamic was in
default when the amended complaint was filed, Plaintiff was not required to serve the amended
complaint upon it since it does not assert new claims against Defendant Dynamic.”). To date,
despite the original service, Suntrust and MERS have not appeared.
Under 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.” See also 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) . . . .”). Accordingly, then, Plaintiff’s

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motion (Doc. 59) is GRANTED. The Clerk is directed to enter default against Defendants
Suntrust Bank and Mortgage Electronic Registration Systems, Inc. The Clerk is also directed to
mail a copy of this order, along with the clerk’s default, to Defendant Suntrust Bank and Defendant
Mortgage Electronic Registration Systems, Inc. via their registered service agent: Corporate
Service Company, 1201 Hays St., Tallahassee, FL 32301.
DONE and ORDERED in Ocala, Florida on March 3, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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