Barrows et al v. Bank of America, NA

Filing 6

ORDER: Plaintiffs Scott Barrows and Judy Barrows' Application for Entry of Default, Default Judgment and Supporting Affidavit 5 is DENIED. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 9/24/2014. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SCOTT O. BARROWS and JUDY L.
BARROWS,
Plaintiffs,
v.

Case No.

8:14-cv-2121-T-33TGW

BANK OF AMERICA, N.A,
Defendant.
_______________________________/
ORDER
This matter is before the Court pursuant to pro se
Plaintiffs Scott Barrows and Judy Barrows’ Application for
Entry of Default, Default Judgment and Supporting Affidavit
(Doc. # 5), which was filed on September 24, 2014.

The Court

denies the Motion for the reasons that follow.
Discussion
Plaintiffs initiated this action against Defendant Bank
of America, N.A., on August 28, 2014 (Doc. # 1) and submit
that

they

effected

service

of

process

on

Defendant

on

September 3, 2014. (Doc. # 5).

Each of the Plaintiffs have

filed

to

an

affidavit

attesting

service

Defendant via certified mail. (Id.).
Federal

Rules

of

Civil

of

process

on

However, Rule 4 of the

Procedure,

which

outlines

the

requirements for effecting service of process, requires that
service be accomplished by a non-party.

The Rule specifies, “Any person who is at least 18 years
old and not a party may serve a summons and complaint.” Fed.
R. Civ. P. 4(c)(2); see also Constien v. United States, 628
F.3d

1207,

1215

(10th

Cir.

2010)(“Even

when

service

is

effected by use of the mail, only a nonparty can place the
summons and complaint in the mail.”); Lechner v. Citimortgage,
Inc., No. 4:09-cv-302, 2009 U.S. Dist. LEXIS 65836, at *6
(N.D. Tex. July 29, 2009)(“service was defective because it
was sent by Plaintiffs personally [and] Rule 4(c)(2) requires
that service be made by [a]ny person who is at least 18 years
old and not a party.”)(emphasis in original); Walker v. Pharm.
Research & Mfgs. of Am., 569 F. Supp. 2d 209, 214 (D.D.C.
2008)(“an examination of the plaintiff’s returns of service
reveals that plaintiff has not properly effected service of
process [because] the returns . . . state that the plaintiff
herself sent the summons and complaint by certified mail.”).
The Court accordingly denies Plaintiffs’ application for
entry of a Clerk’s Default and directs that Plaintiffs comply
with Rule 4 of the Federal Rules of Civil Procedure in further
efforts to accomplish service of the summons and the complaint
on Defendant.

In addition, the Court reminds Plaintiffs, who

are proceeding pro se, that the deadline for effecting service
is 120 days from the date the complaint was filed pursuant to
2

Rule

4(m),

Fed.

R.

Civ.

P.,

and

once

service

has

been

accomplished, Plaintiffs are required to file proof of service
in accordance with Rule 4(l), Fed. R. Civ. P.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiffs Scott Barrows and Judy Barrows’ Application
for

Entry

of

Default,

Default

Judgment

and

Supporting

Affidavit (Doc. # 5) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 24th
day of September, 2014.

Copies: All parties of record

3