Southern-Owners Insurance Company v. Phonex Realty Homes, Inc.
ORDER granting 78 Motion for Clerk's Default; granting 79 Motion for Clerk's Default; granting 80 Motion for Clerk's Default. Signed by Magistrate Judge Philip R. Lammens on 11/17/2021. (JWM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 5:20-cv-384-JSM-PRL
PHONEX REALTY HOMES, INC.,
ALAN TARPELL, RICHARD
ARRIGHI, KEITH CLARKE, KIM
DISALVO, JAMES SCELFO, BAE
SCELFO and PATRICK J. DISALVO,
As set forth in the Court’s prior Order (Doc. 87), Plaintiff was directed to show cause
why its motions for Clerk’s default should be granted as to Defendants Alan Tarpell, Richard
Arrighi, and Phonex Realty Homes, Inc. Plaintiff previously sought Clerk’s entry of default
against these Defendants as to the Second Amended Complaint (Doc. 75). In the Court’s
Order, Plaintiff was also directed to address whether the requirements of Rule 5 of the Federal
Rules of Civil Procedure had been fully satisfied and whether the Second Amended
Complaint asserts a new claim for relief against any of the parties against whom Clerk’s
default is sought.
In a belated filing, Plaintiff has responded to the Court’s Order. (Doc. 88). As to Alan
Tarpell and Phonex Realty Homes, Plaintiff recites that “the addresses listed in the Certificate
of Service in SOUTHERN-OWNERS’ Second Amended Complaint for Declaratory
Judgment (the “Second Amended Complaint”) (Doc. 75) match the addresses at which PRH
and TARPELL were served.” Plaintiff also recites that “[t]he Second Amended Complaint,
like the Complaint and Amended Complaint, consists of a single cause of action seeking
declaratory relief pertaining to SOUTHERN-OWNERS’ coverage, if any, with respect to the
Underlying Action. The Second Amended Complaint does not assert a new claim for relief
against PRH, ARRIGHI, and/or TARPELL.” (Doc. 88).
Typically when serving a pleading subsequent, such as the second amended complaint,
the plaintiff need only mail a copy of the pleading to the last known address of the person
served. See Fed.R.Civ.P. 5(b)(2)(B); see also Fed.R.Civ.P. 5(a). That said, Rule 5(a)(2) requires
that a pleading that asserts a new claim for relief against a party that has failed to appear must
be served on that party under Rule 4.
Based on Plaintiff’s representations and a review of the docket, it appears that
Plaintiff’s motions for Clerk’s default are due to be granted. As to Alan Tarpell and Phonex
Realty Homes, Inc., the address at which they were previously served by a process server with
the original complaint exactly matches the address at which they were served via mail with
the amended complaint and second amended complaint. (See Docs. 18, 19, 55 & 75). As to
Richard Arrighi, Plaintiff points out that the address recorded as being where he was served
with the original complaint is listed as 1752 Cobblestone Lane, Clermont, Florida, but that
appears to be merely a clerical error on the part of the process server as his address is correctly
listed in the second amended complaint and the amended complaint as 17521 Cobblestone
Lane, Clermont, Florida. Plaintiff’s supposition appears to be correct and, in any event,
Arrighi subsequently filed an answer while represented by counsel and did not raise the issue
of improper service. (Doc. 31).
Accordingly, upon due consideration, Plaintiff’s motions for Clerk’s entry of default
(Docs. 78, 79 & 80) are due to be granted.
DONE and ORDERED in Ocala, Florida on November 17, 2021.
Copies furnished to:
Counsel of Record
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