Cornerstone Technical Sales, LLC v. Chassis Plans, LLC

Filing 8

ORDER granting 3 Motion to Quash service of process on Defendant and vacating clerk's default. Signed by Magistrate Judge Thomas B. Smith on 12/6/2016. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CORNERSTONE TECHNICAL SALES,
LLC,
Plaintiff,
v.

Case No: 6:16-cv-2007-Orl-28TBS

CHASSIS PLANS, LLC,
Defendant.
ORDER
This case comes before the Court without oral argument on Defendant’s Motion to
Quash Service of Process and to Set Aside Clerk’s Default (Doc. 3). Plaintiff has not
responded to the motion and the time within to do so has expired. Accordingly, the Court
treats the motion as unopposed. Foster v. The Coca-Cola Company, No. 6:14-cv-2102Orl-40TBS, 2015 WL 3486008, at *1 (M.D. Fla. June 2, 2015); Jones v. Bank of America,
N.A., 564 Fed. Appx. 432, 434 (11th Cir. 2014) 1 (citing Kramer v. Gwinnett Cnty., Ga., 306
F. sup.2d 1219, 1221 (N.D. Ga. 2004); Daisy, Inc. v. Polio Operations, Inc., No. 2:14-cv564-FtM-38CM, 2015 WL 234251, at *1 (M.D. Fla. May 14, 2015) (when defendant did
not respond court could consider motion to compel unopposed); Brown v. Platinum
Wrench Auto Repair, Inc., No. 8:10-cv-2168-T-33TGW, 2012 WL 333808, at * 1 (M.D.
Fla. Feb. 1, 2012) (after party failed to respond, court treated motion for summary
judgment as unopposed).

“Unpublished opinions are not considered binding precedent, but may be cited as persuasive
authority.” CTA11 Rule 36-2.
1

This case was removed from the Ninth Judicial Circuit of Florida, in and for Orange
County, Florida to this Court on November 16, 2016 (Doc. 1). Prior to removal, Plaintiff
filed a Return of Service stating that Defendant was served by serving “John Doe,”
manager at 10840 Thornmint Rd., #100, San Diego, CA 92127 (Doc. 1-2 at 35). Service
was made pursuant to FLA. STAT. § 48.062 which provides:
(1) Process against a limited liability company, domestic or
foreign, may be served on the registered agent designated by
the limited liability company under chapter 605. A person
attempting to serve process pursuant to this subsection may
serve the process on any employee of the registered agent
during the first attempt at service even if the registered agent
is a natural person and is temporarily absent from his or her
office.
(2) If service cannot be made on a registered agent of the
limited liability company because of failure to comply with
chapter 605 or because the limited liability company does not
have a registered agent, or if its registered agent cannot with
reasonable diligence be served, process against the limited
liability company, domestic or foreign, may be served:
(a) On a member of a member-managed limited liability
company;
(b) On a manager of a manager-managed limited liability
company; or
(c) If a member or manager is not available during regular
business hours to accept service on behalf of the limited
liability company, he, she, or it may designate an employee of
the limited liability company to accept such service. After one
attempt to serve a member, manager, or designated employee
has been made, process may be served on the person in
charge of the limited liability company during regular business
hours.
(3) If, after reasonable diligence, service of process cannot be
completed under subsection (1) or subsection (2), service of
process may be effected by service upon the Secretary of
State as agent of the limited liability company as provided for
in s. 48.181.

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(4) If the address provided for the registered agent, member,
or manager is a residence or private mailbox, service on the
limited liability company, domestic or foreign, may be made by
serving the registered agent, member, or manager in
accordance with s. 48.031.
(5) This section does not apply to service of process on
insurance companies.
FLA. STAT. § 48.062.
The Return of Service fails to state the number of attempts made to serve
Defendant, or that “John Doe,” was a manager or employee of Defendant or its registered
agent (Id.). The address at which service was made is not the correct address for
Defendant’s registered agent (Doc. 3 at 2). Defendant has filed the uncontroverted
affidavit of its “Agent for Service of Process” in which he denies service of process on
himself or any manager of the company (Doc. 1-2 at 53-55). He also testifies that the
description of “John Doe” provided by the process server does not match the description
of the Agent for Service of Process, any of his employees, or any of Defendant’s
managers (Id.). Now, the Court finds that Plaintiff has not demonstrated that Defendant
was validly served. For this reason, and because Plaintiff does not oppose the motion,
the service of process on Defendant is QUASHED, and the default entered by the Clerk is
VACATED.
DONE and ORDERED in Orlando, Florida on December 6, 2016.

Copies furnished to Counsel of Record

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