Balfour Beatty Construction, LLC v. Lake Mechanical Contractors, Inc. et al

Filing 196

ORDER granting in part and denying in part 178 Motion for default; granting in part and denying in part 184 Motion for Entry of Default. Signed by Magistrate Judge Thomas B. Smith on 4/13/2017. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
BALFOUR BEATTY CONSTRUCTION,
LLC,
Plaintiff,
v.

Case No: 6:16-cv-1804-Orl-40TBS

NEW ERA LENDING, LLC, PETROLEUM
COMPLIANCE SOLUTIONS, INC.,
UNITHERM, INCORPORATED, HAJOCA
CORPORATION, HIGGINS
INFORMATION TECHNOLOGIES, INC.,
LAPIN SHEET METAL COMPANY,
ORLANDO WINNELSON CO., TRANE
U.S., INC., ROBERT MORRISON,
WRIGHT EXPRESS FINANCIAL
SERVICES CORPORATION, TEMPACO,
INC., BLACKS SUPPLY, INC., HOLISTIC
TEST & BALANCE, INC., SUNBELT
RENTALS, INC., STAN WEAVER AND
COMPANY, FCX PERFORMANCE, INC.,
RYAN HERCO PRODUCTS CORP.,
ROBERTS OXYGEN COMPANY, INC.,
ANDREWS FILTER AND SUPPLY
CORPORATION, MOVEABLE
CONTAINER STORAGE, INC., ACE
STAFFING UNLIMITED, INC., HERTZ
EQUIPMENT RENTAL CORPORATION
and FASTEC PERFORMANCE
WAREHOUSE, INC.,
Defendants.
ORDER
This matter comes before the Court on the following motions:
1. Lapin Sheet Metal Co.’s Motion for Clerk’s Default as to its Crossclaims (Doc.
178); and
2. Plaintiff Balfour Beatty Construction, LLC’s Motion for Clerk’s Default (Doc. 184).

After due consideration, both motions are granted in part and denied in part.
Background
Plaintiff is the general contractor for the pool rehabilitation project at the Walt
Disney World Polynesian Resort (Doc. 87 ¶ 31). It contracted with Defendant Lake
Mechanical as a subcontractor (Id.). Lake Mechanical contracted with various
subcontractors, including those listed as Defendants in this case (Id.). Lake Mechanical
failed to pay its subcontractors in full (Id.). Plaintiff was then in possession of $102,590.25
comprised of (a) $31,469.41 for amounts invoiced by Lake Mechanical to Plaintiff and
held in open payables and (b) $71,120.84 in retainage (Id.). Plaintiff has deposited the
funds into the Court Registry and filed this interpleader action for a determination to
whom the money belongs (Id. at ¶¶ 32, 34-35). It invokes this Court’s jurisdiction pursuant
to Federal Rule of Civil Procedure 22 and 28 U.S.C. § 1335 (Doc. 87).
Plaintiff filed its original complaint on October 18, 2016, which it has since twice
amended (Docs. 6 and 102). The operative pleading is the Second Amended Complaint,
filed on January 20, 2017 (Docs. 87,102). On January 27, 2017, Lapin Sheet Metal
Company answered the Second Amended Complaint and filed a cross-claim for an
equitable lien on $5,662.50 in retainage and a cross-claim for breach of contract in the
amount of $25,069.69 (Doc. 101). On February 3, 2017, Defendant Stan Weaver and Co.
answered and filed a cross-claim against all parties (Doc. 134). On February 6, 2017,
Defendant Higgins Information Technologies, Inc. answered and filed a cross-claim
against all Defendants (Docs. 161, 162). Defendant Trane U.S., Inc. answered the
Second Amended Complaint on February 22, 2017 (Doc. 170). No other Defendants
have responded to the Second Amended Complaint. Only Defendants Higgins
Information and Stan Weaver have responded to Lapin’s cross-claim (Docs. 166, 171).

-2-

Now, Plaintiff and Lapin move for the entry of defaults against all Defendants who have
failed to respond to their claims (Docs. 178, 184).
Legal Standard
Federal Rule of Civil Procedure 55(a) provides that “[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.” FED. R.
CIV. P. 55(a); see Kelly v. Florida, 233 F. App’x 883, 885 (11th Cir. 2007) (citing FED. R.
CIV. P. 55(a) (The federal rules require court clerks to enter a defendant’s default “[w]hen
service of process is properly effected, but the served party fails to respond in a timely
manner ....”). This procedural mechanism may be invoked by a plaintiff or cross-plaintiff.
Cf. Ohio Nat’l Life Assurance Co. v. Edenfield, No. 3:12-cv-257-TAV-CCS, 2013 WL
11451760, at *1 (E.D. Tenn. Dec. 6, 2013) (the cross-plaintiff’s motion for clerk’s default
and default judgment considered, but denied on unrelated grounds); Bank of Nashville v.
Sarmadi, Civil No. 3:06-0775, 2009 WL 2916884 (M.D. Tenn. Sept. 2, 2009) (the court
determined that the cross-plaintiff’s motion for clerk’s default was properly granted). Prior
to 2007, the federal rules explicitly stated that “[t]he provisions of this rule apply whether
the party entitled to the judgment by default is a plaintiff, third-party plaintiff, or a party
who has pleaded a cross-claim or counterclaim.” FED. R. CIV. P. 55(d) (2005). In 2007, the
Advisory Committee deleted Rule 55(d), explaining that the enumerated list was
“incomplete and unnecessary. Rule 55(a) applies Rule 55 to any party against whom a
judgment for affirmative relief is requested.” FED. R. CIV. P. 55 advisory committee's note
to 2007 amendment.
Discussion
Under the federal rules, a plaintiff may serve a corporate defendant by:

-3-

[D]elivering 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 and—if the agent is one authorized by statute and the
statute so requires—by also mailing a copy of each to the
defendant[.]
FED. R. CIV. P. 4(h)(1)(B). A plaintiff may also serve a defendant by “following state law for
serving a summons in an action brought in courts of general jurisdiction in the state where
the district court is located or where service is made[.]” FED. R. CIV. P. 4(h)(1)(A), 4(e)(1).
Florida Statutes permit process to be served on a corporation by serving any one of the
following persons: (a) the president, vice president or other corporate head; (b) the
cashier, treasurer, secretary, or general manager; (c) any corporate director; (d) any
officer or business agent residing in Florida; (e) or an agent designated by the corporation
under FLA. STAT. 48.091. 1 See FLA. STAT. § 48.081. Under the Florida statutes, the
registered agent can be either an individual who resides in the state or another

corporation authorized to conduct business in Florida. See FLA. STAT. § 607.0501(1)(b)
(emphasis added).

1

FLA. STAT. § 48.091 provides:
(1) Every Florida corporation and every foreign corporation now qualified
or hereafter qualifying to transact business in this state shall designate a
registered agent and registered office in accordance with chapter 607.
(2) Every corporation shall keep the registered office open from 10 a.m. to
12 noon each day except Saturdays, Sundays, and legal holidays, and
shall keep one or more registered agents on whom process may be served
at the office during these hours. The corporation shall keep a sign posted
in the office in some conspicuous place designating the name of the
corporation and the name of its registered agent on whom process may be
served.

If plaintiff is unable to serve the registered agent because of the failure to comply with FLA. STAT. § 48.091,
“service of process shall be permitted on any employee at the corporation’s principal place of business or
on any employee of the registered agent.” FLA. STAT. § 48.081(3)(a).

-4-

If the address provided for the registered agent, officer, or director is a residence
or private residence, “service on the corporation may be [made by] serving the registered
agent, officer, or director in accordance with s. 48.031.” FLA. STAT. § 48.081(3)(b). Section
48.031, permits a process server to effect service on “any person residing therein who is
15 years of age or older ...” FLA. STAT. § 48.031(1)(a). When all other methods fail,
section 48.081(3)(a) permits service on “any employee of the registered agent [even]
during the first attempt at service . . . ”
Once served with an original complaint, a defendant has 21 days to file a
response. FED. R. CIV. P. 12(a)(1)(A)(i). A defendant shall have 14 days to respond to the
service of an amended complaint, plus an additional 3 days, if service is made by mail
under Rule 5(b)(2)(C). See FED. R. CIV. P. 15(a)(3).
A. Plaintiff’s Motion for Default
1. Defendants for Whom the Entry of Clerk’s Default is Proper
Defendant Robert Morrison was properly served as the assignee for the benefit of
the creditors of Lake Mechanical Contractors, Inc. because he is an agent appointed by
law to receive service of process on behalf of the subcontractor’s creditors. See In re:
Lake Mechanical Contractors, Inc., Case No. 2016-CA-001382, in the Circuit Court for the
Fifth Judicial Circuit in and for Lake County, Florida 2; (Doc. 63 at 2); FED. R. CIV. P.
4(h)(1)(B).
Plaintiff’s original complaint was properly served on the [individual and corporate]
registered agents of the following Defendants:

2

https://officialrecords.lakecountyclerk.org/Details/

-5-

Entity

Date

Docket
Entry

Petroleum Compliance Solutions, Inc. n/k/a
Procorr, Inc.

12/19/16

123, 152

12/22/16

131, 159

12/19/16

112, 142

12/19/16

120, 121,
151

12/19/16

132, 160

12/16/16

128, 156

12/20/16

107

12/22/16

145, 146

12/19/16

110

12/15/16

125, 154

12/15/16

124, 153

RA: John Marc Tamayo
Unitherm, Inc.

RA: Charles Gorski
Hajoca Corporation d/b/a Hughes Supply,
Inc.

RA: Corporation Service Company (Kara
Stover)
Orlando Winnelston Co. n/k/a Winsupply
Orlando FL Co.

RA: Corporation Service Company (Kara
Stover)
Wright Express Financial Services
Corporation n/k/a Wex Bank

RA: Corporation Service Company (Kara
Stover)
Tempaco, Inc.

RA: Maria E. Robinson
Blacks Supply, Inc.

RA: Jason Black
Holistic Test & Balance, Inc.

RA: Nicholas Uffelman
FCX Performance, Inc. a/k/a Solares
Controls

RA: National Corporate Research, Ltd., Inc.
(Ken Howell)
Ryan Herco Products, Corp.

RA: C T Corporation System (Donna Moch)
Robert Oxygen Company, Inc.

-6-

RA: C T Corporation System (Donna Moch)
Andrews Filter and Supply Corporation

12/21/16

137

12/19/16

119, 150

12/22/16

136

12/15/16

113, 143

RA: Mark Andrews
Moveable Containers Storage, Inc.

RA: National Corporate Research, Ltd., Inc.
(Ken Howell)
Ace Staffing Unlimited, Inc. n/k/a Ace
Staffing Unlimited Management, Inc

RA: Alexander Cvercko (employee, Barbara
Law) 3
Hertz Equipment Rental Corporation n/k/a
Herc Rentals Inc.

RA: C T Corporation System (Donna Moch)

Defendant New Era Lending LLC is a Delaware company, registered with the New
York Department of State’s Division of Corporations as a foreign limited liability
company. 4 The return of service shows that the process server effected service on the
New York Secretary of State by leaving two copies of the summons and complaint with
Sue Zouky, authorized agent, in the secretary’s office and by paying the statutory fee of
$40 (Doc. 164). This type of service is effective in the state of New York, therefore, it is
deemed proper here. See FED. R. CIV. P. 4(h)(1)(A), 4(e)(1) (A plaintiff may also serve a
defendant by “following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where service is
3

See FLA. STAT. § 48.031(1)(a).

4

https://appext20.dos.ny.gov/corp_public/CORPSEARCH.ENTITY_INFORMATION?p_token=B1D537E859
6D76D890B29EC126C09D5D6B1C9AD4B127AEE0DADDA89695CBD094636549A05B9120A49AAA37C
DA4EA56D3&p_nameid=8C8ED46EBE463990&p_corpid=40CC2E187425F4CA&p_captcha=17089&p_ca
ptcha_check=1E3C8FC4BD5E6545&p_entity_name=%4E%65%77%20%45%72%61%20%4C%65%6E%
64%69%6E%67%20%4C%4C%43&p_name_type=%25&p_search_type=%42%45%47%49%4E%53&p_sr
ch_results_page=0

-7-

made[.]”); see also Perkins v. 686 Halsey Food Corp., 829 N.Y.S. 2d 185, 186 (2007)
(citing N.Y. Business Corporation Law § 306(b)(1) (McKinney 2017); Shimel v. 5 S. Fulton
Ave. Corp., 783 N.Y.S. 2d 54, 55 (2004).
Plaintiff’s Second Amended Complaint was served on all Defendants, by mail,
between January 20, 2017 and January 31, 2017, in accordance with FED. R. CIV. P.
5(b)(2)(C) (Doc. 184 at 2-3). Therefore, Defendants owed Plaintiff their responses to the
Second Amended Complaint by the third week in February, 2017. All of the Defendants
listed above have failed to respond to Plaintiff’s allegations and the entry of default
against them is proper.
2. Defendants for Whom the Entry of Clerk’s Default is NOT Proper
The process server served Defendant Sunbelt Rentals, Inc. by leaving a copy of
the summons and complaint with Daniel Wagner as Assistant Manager and authorized
employee of registered agent Don Beloff (Doc. 127). The problem here is that the
address listed for Mr. Beloff in the state’s corporate database 5 (2255 Glades Rd, Ste
340W, Boca Raton, FL 33431) is the same address listed in the summons, but is not the
address at which service was attempted. That address was: 600 East Landstreet Road,
Orlando, FL 32824 (Doc. 127). Plaintiff has failed to offer an explanation for why service
was attempted at a different address. Therefore, the motion for clerk’s default against this
Defendant must be denied without prejudice.
Fastec Performance Warehouse, Inc. was also not properly served. Summonses
were issued for this Defendant, care of Scott Bramlett, as registered agent, 3950
5

http://search.sunbiz.org/Inquiry/CorporationSearch/SearchResultDetail?inquirytype=EntityName&directionT
ype=Initial&searchNameOrder=SUNBELTRENTALS%20H288060&aggregateId=domp-h28806-32e497d405c1-4942-914dabd400af884b&searchTerm=sunbelt%20rentals&listNameOrder=SUNBELTRENTALS%20F000000041600

-8-

Kissimmee Park Road, St. Cloud, FL 34772 (Docs. 89, 92). This registered agent and
address is consistent with what appears on the state’s corporate database. 6 Plaintiff cites
to docket entries 109 and 140 as evidence that this Defendant was served. But, those
documents only confirm service on Raymond Forrest as registered agent of “Fas Tec,
Incorporated at 503 Sandy Hook Road, Treasure Island, FL 33706” (Doc. 109, 140). 7
Plaintiff apparently recognized its error and advised the Court that it would serve Fastec
Performance Warehouse, Inc. with a copy of the summons and amended complaint (Doc.
62; Doc. 62-1 at 2). But, it does not appear this was done because the record contains no
evidence that Fastec Performance Warehouse, Inc. was ever served. The motion for
clerk’s default will not be granted here in the absence of proof that Fastec Performance
Warehouse was properly served.
B. Cross-Plaintiff’s Motion for Default
Lapin answered Plaintiff’s Second Amended Complaint and filed its cross-claim on
January 27, 2017 (Doc. 101). Lapin’s decision to serve the Cross-Defendants by mail is
permitted under the federal rules. FED. R. CIV. P. 5; 6 CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE CIVIL § 1407 (3d ed. 2017); 4B CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE CIVIL § 1148 (4th ed.
2017). Service is considered complete upon mailing. FED. R. CIV. P. 5(b)(2)(C).
Accordingly, Cross-Defendants had 24 days from the date of service of the cross-claim to

6

http://search.sunbiz.org/Inquiry/CorporationSearch/SearchResultDetail?inquirytype=EntityName&directionT
ype=Initial&searchNameOrder=FASTECPERFORMANCEWAREHOUSE%20P960000294970&aggregateI
d=domp-p96000029497-4c4b451a-fc07-4b6b-bd120c7e8c214809&searchTerm=Fastec%20Performance%20Warehouse%2C%20Inc.&listNameOrder=FAST
ECPERFORMANCEWAREHOUSE%20P960000294970
7

This defendant was terminated from the case on January 20, 2017 (Docket).

-9-

respond. See FED. R. CIV. P. 6(d) (when service is made under Rule 5(b)(2)(C), three
additional days are added to the 21 days mandated in FED. R. CIV. P. 12(a)(1)(B)).
The Certificate of Service attached to Lapin’s Answer (Doc. 101 at 11-13)
demonstrates that its cross-claim was properly served by postal mail on the following
Cross-Defendants on January 27, 2017:
Entity
Petroleum Compliance Solutions, Inc. n/k/a
Procorr, Inc.

RA: John Marc Tamayo
Fastec Performance Warehouse, Inc.

RA: Scott Bramlett
Unitherm, Inc.

RA: Charles Gorski
Hajoca Corporation d/b/a Hughes Supply,
Inc.

RA: Corporation Service Company (Kara
Stover)
Orlando Winnelston Co. n/k/a Winsupply
Orlando FL Co.

RA: Corporation Service Company (Kara
Stover)
Wright Express Financial Services
Corporation n/k/a Wex Bank

RA: Corporation Service Company (Kara
Stover)
Tempaco, Inc.

RA: Maria E. Robinson
Blacks Supply, Inc.

RA: Jason Black

- 10 -

Holistic Test & Balance, Inc.

RA: Nicholas Uffelman
FCX Performance, Inc. a/k/a Solares
Controls

RA: National Corporate Research, Ltd., Inc.
(Ken Howell)
Ryan Herco Products, Corp.

RA: C T Corporation System (Donna Moch)
Robert Oxygen Company, Inc.

RA: C T Corporation System (Donna Moch)
Andrews Filter and Supply Corporation

RA: Mark Andrews
Moveable Containers Storage, Inc.

RA: National Corporate Research, Ltd., Inc.
(Ken Howell)
Ace Staffing Unlimited, Inc. n/k/a Ace
Staffing Unlimited Management, Inc

RA: Alexander Cvercko (employee, Barbara
Law) 8
Hertz Equipment Rental Corporation n/k/a
Herc Rentals Inc.

RA: C T Corporation System (Donna Moch)
New Era Lending LLC
Officer: Alan Karul, Chief Financial Officer 9

8
9

See FLA. STAT. § 48.031(1)(a).
New Era Lending LLC has designated Mr. Karul as the appropriate individual to receive process.

See
https://appext20.dos.ny.gov/corp_public/CORPSEARCH.ENTITY_INFORMATION?p_token=AEBD99D866
EEE247380C80552893E6B6AB85019DBD2B755F3A18A4F716C15CB3349AE0D502C9FCD4B76258118
64C3B9B&p_nameid=8C8ED46EBE463990&p_corpid=40CC2E187425F4CA&p_captcha=15211&p_captc
ha_check=A8772F231B9577C7&p_entity_name=%4E%65%77%20%45%72%61%20%4C%65%6E%64%
69%6E%67%20%4C%4C%43&p_name_type=%25&p_search_type=%42%45%47%49%4E%53&p_srch_r
esults_page=0. Service of process on Mr. Karul was proper under N.Y. Business Corporation Law § 311-a
(a)(iv) (McKinney 2017).

- 11 -

Cross-Defendant Sunbelt Rentals n/k/a/ SPDC, Inc. was properly served on March
7, 2017 (Doc. 175); thus, its response was due by March 31, 2017. For the reasons set
forth in section A.1, supra, Cross-Plaintiff’s service on Robert Morrison as assignee for
the benefit of creditors of Lake Mechanical Contractors, Inc. was also proper.
These Defendants have failed to respond to Cross-Plaintiff’s allegations and the
entry of default against them on the cross-claims is proper.
Lapin also seeks the entry of default against Cross-Defendant Trane U.S., Inc.
(Doc. 178 at 5), however, the record is devoid of proof that this Cross-Defendant was
actually served with a copy of the cross-claim. Therefore, Lapin’s request to default this
Cross-Defendant will be denied.
Conclusion
Upon consideration of the foregoing, it is hereby ORDERED that:
1. Plaintiff Balfour Beatty Construction, LLC’s Motion for Clerk’s Default (Doc. 184)
is GRANTED to the extent it seeks the entry of default against the following Defendants:
Robert Morrison as Assignee for the Benefit of Creditors of Lake Mechanical; Petroleum
Compliance Solutions, Inc. n/k/a Procorr, Inc.; Unitherm, Incorporated; New Era Lending,
LLC; Hajoca Corporation d/b/a Hughes Supply, Inc.; Orlando Winnelson Co. n/k/a
Winsupply Orlando FL Co.; Wright Express Financial Services Corporation n/k/a Wex
Bank; Tempaco, Inc.; Blacks Supply, Inc.; Holistic Test & Balance, Inc.; FCX
Performance, Inc. a/k/a Solares Controls; Ryan Herco Products Corp; Robert Oxygen
Company, Inc.; Andrews Filter and Supply Corporation; Moveable Containers Storage,
Inc.; Ace Staffing Unlimited, Inc. n/k/a Ace Staffing Unlimited Management, Inc.; and,
Hertz Equipment Rental Corporation n/k/a Herc Rentals Inc. The motion is DENIED in all
other respects.

- 12 -

2. Cross-Plaintiff Lapin Sheet Metal Co.’s Motion for Clerk’s Default (Doc. 178) is
GRANTED to the extent it seeks to default the following Cross-Defendants: Robert
Morrison as Assignee for the Benefit of Creditors of Lake Mechanical; Fastec
Performance Warehouse, Inc.; Petroleum Compliance Solutions, Inc. n/k/a Procorr, Inc.;
Unitherm, Incorporated; New Era Lending, LLC; Hajoca Corporation d/b/a Hughes
Supply, Inc.; Orlando Winnelson Co. n/k/a Winsupply Orlando FL Co.; Wright Express
Financial Services Corporation n/k/a Wex Bank; Tempaco, Inc.; Blacks Supply, Inc.;
Holistic Test & Balance, Inc.; FCX Performance, Inc. a/k/a Solares Controls; Ryan Herco
Products Corp; Robert Oxygen Company, Inc.; Andrews Filter and Supply Corporation;
Moveable Containers Storage, Inc.; Ace Staffing Unlimited, Inc. n/k/a Ace Staffing
Unlimited Management, Inc.; Sunbelt Rentals, Inc. n/k/a SPDC, Inc.; and, Hertz
Equipment Rental Corporation n/k/a Herc Rentals Inc. The motion is DENIED in all other
respects.
3. Plaintiff does not seek entry of default against Defendant Lysbeth United
Refrigeration, Inc., which was dismissed from this litigation on April 5, 2017 (Docs. 183,
Doc. 184 at ¶ 2, Doc. 186). Likewise, Plaintiff does not seek the entry of default against
the following Defendants who all filed Disclaimers of Interest and were subsequently
terminated: Bronson Ace Hardware, Inc. (Docs. 72, 74); Johnstone Supply, Inc. (Docs.
179, 180); and W.W. Grainger, Inc. (Docs. 182, 185).To the extent Lapin asks the Court
to enter default against these terminated Defendants, that request is DENIED AS MOOT.
DONE and ORDERED in Orlando, Florida on April 13, 2017.

- 13 -

Copies furnished to:
Counsel of Record
Any Unrepresented Parties

- 14 -