United States of America v. Shiffman et al

Filing 25

ORDER denying without prejudice 24 Motion for Default Judgment Against Mary Jane Facciponti and Joann Sorensen. On or before December 1, 2023, the United States shall show cause why the case against Lillian Shiffman should not be dismissed for failure to prosecute. Signed by Magistrate Judge Daniel C. Irick on 11/13/2023. (TNP)

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

Case No: 6:23-cv-1043-CEM-DCI

LILLIAN SHIFFMAN, MARY JANE
FACCIPONTI and JOANN SORENSEN,
Defendants.

ORDERED
This cause comes before the Court for consideration without oral argument on the
following motion:
MOTION:

United States’ Motion for Default Judgment Against Mary
Jane Facciponti and Joann Sorensen (Doc. 24)

FILED:

October 10, 2023

THEREON it is ORDERED that the motion is DENIED without prejudice.
The United States brought this case against Lillian Shiffman (Shiffman), Mary Jane
Facciponti (Facciponti), and Joanne Sorensen (Sorensen) for fraudulent transfers pursuant to 28
U.S.C. §§ 3304(B)(1)(A) and (B) and 28 U.S.C. § 3307(B). Doc. 1 (the Complaint). The United
States requests that the Court declare that the transfers are fraudulent and enter judgments against
Facciponti for $780,500 and Sorensen for $650,000 with prejudgment and post-judgment interest.
Id. at 14. Defendants did not file an answer or otherwise respond to the Complaint. By separate
orders, the Court granted the United States’ Motion for Clerk’s Entry of Default as to Shiffman
and Motion for Clerk’s Entry of Default as to Facciponti and Sorensen. Docs. 16-18, 21-23.

Pending before the Court is the United States’ Motion for Default Judgment Against
Facciponti and Sorenson brought pursuant to Federal Rule of Civil Procedure 55(b). Doc. 24 (the
Motion). The Federal Rules of Civil Procedure establish a two-step process for obtaining default
judgment. First, when a party against whom a judgment for affirmative relief is sought fails to
plead or otherwise defend as provided by the Federal Rules of Civil Procedure, and that fact is
made to appear by affidavit or otherwise, a clerk enters default. Fed. R. Civ. P. 55(a).
Second, after obtaining a clerk’s default, a plaintiff must move for default judgment. Fed.
R. Civ. P. 55(b). Before granting a default judgment, however, a court must confirm it has
jurisdiction over the claims, including that the complaint states a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(1), (2); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410
(11th Cir. 1999); Anderson v. Blueshore Recovery Sys., LLC, 2016 WL 1317706, at *2 (M.D. Fla.
Feb. 25, 2016), report and recommendation adopted, 2016 WL 1305288 (M.D. Fla. Apr. 4, 2016).
Well-pleaded allegations of fact are admitted by default. Id. If a plaintiff’s complaint fails to state
a claim, a default judgment cannot stand. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370
n. 41 (11th Cir. 1997) (citing Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206
(5th Cir. 1975) (“A default judgment is unassailable on the merits but only so far as it is supported
by well-pleaded allegations, assumed to be true.)). A court must also ensure adequate service of
process because a court lacks jurisdiction over a defendant who is not properly served. Pardazi v.
Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990).
The Motion is due to be denied because the United States has not established adequate
service of process. The United States does not address service of process in the Motion but there
is a “Proof of Service” on the docket regarding the personal service of both Facciponti and
Sorensen. Docs. 19, 20. The “Proof of Service,” however, only reflects service of the summons.

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Id.1 For service to be effective “[a] summons must be served with a copy of the complaint.”
Fed.R.Civ.P. 4(c)(1). Because there is no evidence that the United States served Facciponti and
Sorensen with a copy of the Complaint, in addition to the summonses, the United States has failed
to carry its burden to show that the requirements for service have been satisfied. See Reaves v.
RCS Capital, 2020 WL 7395558, at *2 (N.D. Ga. Jan. 8, 2020) (denying a motion for default
judgment where an affidavit of service did not affirmatively state that the defendant’s registered
agent also was served with a copy of the complaint as required by Rule (c)(1)); see also Sumner v.
Premier Financial & Credit Services, 2018 WL 6726541, at *2 (N.D. Ga. Oct. 3, 2018), report
and recommendation adopted by, 2019 WL 8587213 (N.D. Ga. Nov. 25, 2019) (dismissing a
complaint under Rule 4(m) as the amended affidavit of service “still” did not state that a copy of
the complaint was served with the summons); Seeberger v. Goodman, 2015 WL 13659258, at *25
(D.N.M. Aug. 25, 2015) (finding service to be ineffective where the affidavits of service did not
indicate that a copy of the complaint was delivered).
The Court notes that the “Proof of Service” is the second page of the AO 440 form, and
the first page of that form refers to the “attached complaint.” Docs. 3, 19, 20.2 While there does
not appear to be much guidance on the issue, there is at least one court that rejected an argument
that the AO 440 form’s reference to the complaint on the first page should be deemed incorporated
into the proof of service on the second page. Midgett v. Cooper, 2022 WL 795762 (M.D.N.C.
March 16, 2022). The Midgett court found that the plaintiffs did not provide “authority for the
contention that the second page of the Form AO 440 is sufficient to implicitly prove service of

1

To the contrary, the return of service for Shiffman reflects service of the Complaint and the
summons, but Shiffman is not the subject of the Motion. Doc. 14.
2

The “Proof of Service” for Facciponti and Sorensen also reflect the header for Doc. 3, which are
the original issued summonses. Docs. 19, 20.

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both the summons and the complaint.” Id. at *1 (emphasis in original). The court determined that
other courts require the affidavit to reflect service of both “if each is not explicitly stated on the
second page of the Form AO 440” and, since the plaintiffs failed to file a separate affidavit from
the process server attesting to service of the complaint, it was improper to rely on the Form AO
440 to prove service of the complaint. Id. The Court agrees with Midgett and finds that the process
server’s representations to the Court on the second pages of the AO 440 that Facciponti and
Sorensen were personally served with the summonses does not persuade the Court that Facciponti
and Sorensen were properly served.
Finally, while not the subject of the Motion, the United States provides that Shiffman is a
party to this suit because she is the transferor, but the United States is not seeking a judgment
against her. Doc. 24 at 2. Lillian Shiffman is listed as a named Defendant in this case and on July
13, 2023, the United States moved for a Clerk’s Entry of Default against “defendant Lillian
Shiffman.” Doc. 16 at 1. The Clerk entered the default. Doc. 18. Local Rule 1.10(c) requires a
party within 35 days after entry of a default to apply for the default judgment or file a paper
identifying each unresolved issue—such as the liability of another defendant—necessary to entry
of the default judgment. The United States has not complied with this requirement, nor has it cited
any authority as to why Shiffman should remain in the case as the “transferor” when it previously
sought default against her as a defendant.
Based on the foregoing, it is ORDERED that:
1. the United States’ Motion (Doc. 24) is DENIED without prejudice; and
2. on or before December 1, 2023, the United States shall show cause why the case
against Lillian Shiffman should not be dismissed for failure to prosecute.

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Ordered in Orlando, Florida on November 13, 2023.

Copies furnished to:
Presiding District Judge
Counsel of Record
Unrepresented Party
Courtroom Deputy

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