Cook v. State of Florida et al

Filing 30

ORDER granting 26 Plaintiff's Motion for Clerk's Default Against Defendant James Feuerstein. Signed by Magistrate Judge Embry J. Kidd on 2/7/2024. (RMN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ARMAND COOK,
Plaintiff,
v.

Case No: 6:22-cv-1557-PGB-EJK

JAMES FEURERSTEIN,
Defendant.
ORDER
This cause comes before the Court on Pro Se Plaintiff’s Motion for Clerk’s
Default Against Defendant James Feuerstein (Doc. 26), filed January 3, 2024.
I.

BACKGROUND

Plaintiff filed an Amended Complaint against Defendant on April 11, 2023.
(Doc. 18.) On September 13, 2023, the Summons and the Amended Complaint were
personally served on Defendant at his residence. (Doc. 24; see also Doc. 28.) Plaintiff
now seeks entry of a clerk’s default against Defendant for his failure to appear in this
case. (Doc. 26.)
II.

STANDARD

“When 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). Before the clerk may
enter default, he or she must determine that effective service has been made on the

defaulting defendant because, without effective service, there is no jurisdiction and no
obligation to answer or “otherwise defend.” See Kelly v. Florida, 233 Fed. App’x 883,
885 (11th Cir. 2007) (unpublished).
III.

DICUSSION

Under the Federal Rules of Civil Procedure, an individual defendant may 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; or
doing any of the following: delivering a copy of the
summons and of the complaint to the individually
personally; leaving a copy of each at the individual’s
dwelling or usual abode with someone of suitable age and
discretion who resides there; or delivering a copy of each to
an agent authorized by appointment or by law to receive
service of process.
Fed. R. Civ. P. 4(e)(1)–(2)(A–C).
According to the Proof of Service Affidavit, Defendant was personally served
on September 13, 2023, at his residence. (Doc. 24; see also Doc. 28.) Therefore, as
Defendant was properly served in compliance with the Federal Rules of Civil
Procedure and more than 21 days have passed with no responsive pleading filed,
default is appropriate. Fed. R. Civ. P. 12(a)(1)(A)(i).
IV.

CONCLUSION

Accordingly, it is ORDERED as follows:
1. Pro Se Plaintiff’s Motion for Clerk’s Default Against Defendant James
Feuerstein (Doc. 26) is GRANTED.

-2-

2. The Clerk is DIRECTED to enter a default against Defendant.
3. Plaintiff shall file a motion for default judgment within 35 days after entry of a
default. See Local Rule 1.10(c). The motion must address: (1) how the factual
allegations in the Amended Complaint, when applied to the law for each
element of each cause of action, prove that Plaintiff is entitled to judgment
against Defendant for the particular claim, (2) the Court’s jurisdiction (both
personal and subject matter) over the matter, (3) and proof of Plaintiff’s
damages.
DONE and ORDERED in Orlando, Florida on February 7, 2024.

-3-