Jewel v. Florida Department of Revenue et al

Filing 50

ORDER granting 45 Motion to Vacate Default as to Defendants State of Florida and Florida Department of Revenue and/or Quash Service as to Defendant Florida Department of Revenue. Signed by Magistrate Judge Julie S. Sneed on 3/28/2017. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
VERNON JEWEL,
Plaintiff,
v.

Case No: 8:16-cv-2120-T-36JSS

FLORIDA DEPARTMENT OF REVENUE,
DISTRICT OF COLUMBIA and STATE
OF FLORIDA,
Defendants.
___________________________________/
ORDER
THIS MATTER is before the Court on Defendants the State of Florida’s and the Florida
Department of Revenue’s Motion to Vacate Default as to Defendants State of Florida and Florida
Department of Revenue and/or Quash Service as to Defendant Florida Department of Revenue
(“Motion”). (Dkt. 45.) Plaintiff has not filed a response and his time for doing so has elapsed.
Upon consideration, the Motion is granted.
BACKGROUND
Plaintiff sues the Florida Department of Revenue, the District of Columbia, and the State
of Florida. (Dkt. 1.) On February 1, 2017, Plaintiff filed a Process Receipt and Return, in which
Plaintiff specified the Defendant to be served as “Florida Dept of Revenue, et al,” that service was
to be effected on Rick Scott at 400 S. Monroe Street, Tallahassee, Florida 32399, and that the type
of process was “S&C.” (Dkt. 34.) The U.S. Marshal certified that personal service was effected
on January 20, 2017, on the General Counsel to the Governor. (Dkt. 34.)
Plaintiff moved for entry of clerk’s default against all Defendants. (Dkt. 35.) The Court
granted Plaintiff’s motion as to the State of Florida and the Florida Department of Revenue,

concluding that they had been served, but had not timely responded to the complaint. (Dkt. 37.)
The Clerk entered defaults against the State of Florida and the Florida Department of Revenue.
(Dkts. 38, 39.) In the Motion, the State of Florida and the Florida Department of Revenue move
the Court for an order vacating their defaults. (Dkt. 45.)
APPLICABLE STANDARDS
After a complaint is filed, the plaintiff must serve the defendant with the summons and a
copy of the complaint within ninety days. Fed. R. Civ. P. 4(c)(1), (m). If a defendant is not served
within ninety days after the complaint is filed, the court must dismiss the action without prejudice
against that defendant or order that service be made within a specified time. Fed. R. Civ. P. 4(m).
A defendant must serve an answer within twenty-one days after being served with the summons
and complaint, and every defense to the claims raised in the complaint must be asserted in the
answer. Fed. R. Civ. P. 12(a)(1)(A)(i), (b). Alternatively, before filing an answer, a defendant
may present certain defenses to the complaint by motion, including insufficient service of process.
Fed. R. Civ. P. 12(b).
When a party against whom relief is sought fails to plead or otherwise defend the claim,
the clerk of the court must enter the party’s default. Fed. R. Civ. P. 55(a). After a party’s default
has been entered, but before the entry of default judgment, the district court may exercise its
discretion to set aside the default for “good cause.” Fed. R. Civ. P. 55(c); see Jones v. Harrell,
858 F.2d 667, 669 (11th Cir. 1988) (stating that Rule 55(c) applies when a judgment has not been
entered and provides the court discretion to set aside the entry of default). Although there is no
precise standard for evaluating whether good cause exists, courts consider the following factors,
without limitation: whether the default was culpable or willful, whether setting the default aside
would prejudice the other party, whether the defaulting party presents a meritorious defense,

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whether the public interest was implicated, whether the defaulting party suffered significant
financial loss, and the defaulting party’s promptness in acting to correct the default. Compania
Interamericana Exp.-Imp., S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir.
1996).
ANALYSIS
First, Defendants correctly contend that service as to the Florida Department of Revenue
was insufficient. Under Federal Rule of Civil Procedure 4(j)(2), a “state-created governmental
organization,” such as the Florida Department of Revenue, may be served by “delivering a copy
of

the

summons

and

of

the

complaint

to

its

chief

executive

officer”

or

serving a copy of each in the manner prescribed by that state’s law for serving a summons or like
process on such a defendant.” Fed. R. Civ. P. 4(j)(2). Defendant argues that service on only the
Governor was insufficient, under Rule 4(j)(2)(A), because “[t]he head of the Department of
Revenue is the Governor and Cabinet.” § 20.21(1), Fla. Stat. Thus, for service to be sufficient,
Plaintiff was required to serve process “in the manner prescribed by that state’s law.” Fed. R. Civ.
P. 4(j)(2)(B). Florida law requires that “[i]n any suit in which the Department of Revenue or its
successor is a party, process against the department shall be served on the executive director of the
department.” § 48.111(3), Fla. Stat. This was not accomplished. (See Dkt. 34.) Therefore, service
of process on the Florida Department of Revenue was insufficient, and the Motion to quash service
is granted.
Further, the Court finds that the State of Florida and the Florida Department of Revenue
have demonstrated good cause to set aside their defaults. As to the State of Florida, after service
was accepted, the summons and complaint were not forwarded to the correct people based on an
inadvertent mistake. (Dkt. 45 at 5–6.) Thus, the default was not willful, but was instead a result

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of a mistake. See Compania, 88 F.3d at 951–52. Next, the State of Florida and the Department of
Revenue acted promptly to correct the defaults, filing the Motion within a couple weeks’ of entry
of default and within two months of service. See Meth Lab Cleanup, LLC v. Spaulding Decon,
LLC, No. 8:14-CV-3129-T-30TBM, 2015 WL 729337, at *1 (M.D. Fla. Feb. 19, 2015) (reasoning
that defendants’ acting promptly to set aside their default “further supports” the conclusion that
defendants’ default was not willful). Further, the State of Florida and the Florida Department of
Revenue have raised the meritorious defense of immunity from suit under the Eleventh
Amendment of the United States Constitution. Meth Lab Cleanup, 2015 WL 729337, at *1
(internal quotations omitted) (“Even a hint of a suggestion of a meritorious defense renders the
defense colorable.”); Florida Physician’s Ins. Co. v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993)
(explaining that courts view defaults “with disfavor because of the strong policy of determining
cases on their merits”). On a related note, the Court agrees with Defendant that the public interest
is implicated by having defaults entered on Plaintiff’s less than artful pleading. See Compania, 88
F.3d at 951. Finally, given this short lapse in time and the early stages of this case, the Court finds
that setting aside the default would not prejudice Plaintiff. Theiss v. Giove Law Office, P.C., No.
8:08-CV-356-T-17MSS, 2008 WL 2323911, at *3 (M.D. Fla. June 5, 2008) (“[Plaintiff] will not
be prejudiced by vacating of the default. Rather, resolving the case will merely be delayed.”); see
Lake James Assocs., Inc. v. Summit Techs., L.L.C., No. 806CV-692T-17TBM, 2006 WL 2789144,
at *2 (M.D. Fla. Sept. 26, 2006) (explaining that establishing prejudice is showing more than
“[m]ere delay,” but “that the delay will result in the loss of evidence, increased difficulties in
discovery, or greater opportunities for fraud and collusion”).
Therefore, in consideration of the applicable factors, the Court concludes that good cause
has been shown and that setting aside the defaults is warranted. Accordingly, it is

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ORDERED that Defendants the State of Florida’s and the Florida Department of
Revenue’s Motion to Vacate Default as to Defendants State of Florida and Florida Department of
Revenue and/or Quash Service as to Defendant Florida Department of Revenue (Dkt. 45) is
GRANTED. Plaintiff shall have twenty (20) days from the date of this Order to serve the Florida
Department of Revenue.
DONE and ORDERED in Tampa, Florida, on March 28, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Party

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