Watermark Construction, L.P. v. Southern-Owners Insurance Company et al

Filing 61

ORDER granting 59 Motion for Entry of Default against Apache Stucco, Inc. on cross-claim. Signed by Magistrate Judge Thomas B. Smith on 12/1/2017. (Smith, Thomas)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION WATERMARK CONSTRUCTION, L.P., Plaintiff, v. Case No: 6:17-cv-1814-Orl-40TBS SOUTHERN-OWNERS INSURANCE COMPANY, APACHE STUCCO, INC. and OAK MEADOW LIMITED PARTNERSHIP, Defendants. ORDER Defendant Southern-Owners Insurance Company’s Motion for Default on Crossclaim, as to Apache Stucco, Inc. (Doc. 59) is pending before this Court. Plaintiff served Defendant Apache Stucco, Inc. by serving its registered agent/director Linda J. Lambert at 463 Still Forest Terrance, Sanford, Florida on July 5, 2017 (Doc. 12). Plaintiff amended its complaint on July 28, 2017 (Doc. 10) and on August 10, 2017, SouthernOwners answered and cross-claimed against Apache Stucco (Doc. 16 at 1, 6-8). 1 On September 11, 2017, Plaintiff served its amended complaint on Ms. Lambert at the address given by the first process server (Doc. 45 at 1). Apache Stucco did not appear and on November 6, 2017, Plaintiff moved for the entry of a clerk’s default (Doc. 47). The Court initially denied the motion without prejudice (Doc. 48), but after further briefing, granted it on November 17, 2017 (Doc. 55 at 2). 1 Southern-Owners’ states that it filed its answer and cross-claim on October 27, 2017, at Docket Entry 34. See (Doc. 59 at 2, ¶ 5). The pleading filed on October 27, 2017 at Docket Entry 34 was “Oak Meadows Limited Partnership’s Answer and Affirmative Defenses to Southern-Owners’ Insurance Company’s Cross-claim for Declaratory Relief.” Southern-Owners repeated this mistake in its attorney affidavit (Doc. 59-3 at 1-3). Southern-Owners represents that on November 6, 2017, it sent a copy of its crossclaim to Apache Stucco via United Parcel Service addressed to Ms. Lambert at the same address where she was served by Plaintiff’s process servers (Doc. 59 at 2, ¶ 6; Doc. 59-1 at 1-24). A “Proof of Delivery” bearing the same tracking number as the shipping label shows that the cross-claim was delivered to Ms. Lambert’s front door on November 7, 2017 at 10:03 am (Doc. 59-2). Southern-Owners’ decision to serve Apache Stucco by mail is permitted under FED. R. CIV. P. 5(b)(2)(C). 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). Apache Stucco had 24 days from the date of service of the cross-claim to 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)). Apache Stucco’s response was due by November 30, 2017. It has failed to respond and the time within to do so has expired. Accordingly, Southern-Owner’s Motion for Default on Crossclaim (Doc. 59) is GRANTED. The Clerk shall enter default against Apache Stucco on SouthernOwner’s cross-claim. DONE and ORDERED in Orlando, Florida on December 1, 2017. Copies furnished to: Counsel of Record Unrepresented Parties -2-

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