Jeunesse Global Holdings, LLC v. Vivante, Inc. et al
Filing
18
ORDER granting #14 Motion for Entry of Default; denying #15 Motion for Entry of Default. Signed by Magistrate Judge Thomas B. Smith on 10/4/2017. (Smith, Thomas)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JEUNESSE GLOBAL HOLDINGS, LLC,
Plaintiff,
v.
Case No: 6:17-cv-1061-Orl-41TBS
VIVANTE, INC., VITALIY POTSELUEV
and DOES 1-10,
Defendants.
ORDER
This case comes before the Court without oral argument on Plaintiff’s Motion for
Entry of Clerk’s Default Against Defendant, Vitaliy Potseluev (Doc. 14), and Plaintiff’s
Motion for Entry of Clerk’s Default Against Defendant, Vivante, Inc. (Doc. 15).
Federal Rule of Civil Procedure 4(e) provides that an individual may be served by
giving a copy of the summons and complaint to the individual personally; giving a copy of
the summons and complaint to an age-appropriate person who lives at the individual’s
“dwelling or usual place of abode;” serving a copy on the person’s agent “authorized by
appointment or by law” to receive process; or by a manner permitted under the laws of
the state in which the federal district court is located for an action brought in a court of
jurisdiction in that state or in the state wherein service is made. FED. R. CIV. P. 4(e).
The process server’s return states that this action was personally served on
Defendant Vitaliy Potseluev (Doc. 16). More than 21 days have passed and he has not
filed a pleading or paper in the case. Court clerks are required 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….” Kelly v. Florida, 233 Fed. Appx. 883, 885 (11th Cir. 2007)
(citing FED. R. CIV. P. 55(a)). Now, the motion for entry of default against Defendant Vitaliy
Potseluev is GRANTED.
Under the federal rules, a corporate defendants may be served by:
[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 corporate defendant may also be served 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. In
Florida, the registered agent can be either an individual who resides in the state or
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.
Under the statute, if Balfour 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).
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another corporation authorized to conduct business in Florida. See FLA. STAT. §
607.0501(1)(b).
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 ... ”
Defendant Vivante, Inc. was purportedly served by serving Vitaliy Potseluev in
Massachusetts (Doc. 17). Plaintiff has failed to show the connection, if any, between
Vitaliy Potseluev and Vivante, Inc., or explain why Plaintiff has obtained good service on
Vivante, Inc. under federal, Florida, or Massachusetts law. Consequently, the motion for
entry of default against Vivante, Inc. is DENIED.
DONE and ORDERED in Orlando, Florida on October 4, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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