Hernandez v. Boffil Superior Concrete Finish LLC

Filing 15

ORDER denying without prejudice 14 Motion for Default Judgment. Signed by Judge Marcia G. Cooke on 7/27/2015. (tm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-24438-Civ-COOKE/TORRES
JUAN HERNANDEZ,
Plaintiff,
v.
BOFFIL SUPERIOR
CONCRETE FINISH, LLC,
a Florida limited liability company,
Defendant.
_______________________________/
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S
MOTION FOR ENTRY OF A DEFAULT FINAL JUDGMENT
This is an action to recover unpaid overtime wages, liquidated damages,
attorney’s fees and costs under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§
201 et seq. Before me now is Plaintiff’s Motion for Entry of a Default Final Judgment
(the “Motion for Default”). (ECF No. 14). I have considered the Motion for Default
and the record and am otherwise fully advised in the premises. For the reasons that
follow, Plaintiff’s Motion for Default is denied without prejudice.
I.

BACKGROUND

On December 18, 2014, Plaintiff served process on Defendant Boffil Superior
Concrete Finish, LLC (“Boffil”) by leaving the summons and Complaint with Clara
Llacer, as “Co-Resident/Mother of Livet Boffil Llacer who is the Registered Agent
of [Boffil Superior Concrete Finish, LLC]” at the address, 4274 SW 161 Place,
Miami, Florida 33185. (ECF No. 8). Defendant did not appear or timely respond to
the Complaint, and has otherwise failed to defend this lawsuit. Plaintiff subsequently
moved for Clerk’s Entry of Default (ECF No. 12), and a Clerk’s Default was entered
(ECF No. 13). The Plaintiff’s Motion for Default followed. (ECF No. 14).

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II.

DISCUSSION

Federal Rule of Civil Procedure 55(a) requires court clerks to enter a default,
“[w]hen a party against whom a judgment or affirmative relief is sought has failed to
plead or otherwise defend, and that failure is shown by affidavit or otherwise….” A
defendant is under no obligation to plead or otherwise defend, however, until it has
been properly served with the summons and complaint. Fed. R. Civ. P.
12(a)(1)(A)(i).
The Federal Rules of Civil Procedure provide that a limited liability company
may be served by any manner accepted in the state or by delivering copies of the
summons and complaint to any agent authorized by appointment or by law to
receive service of process. Fed. R. Civ. P. 4(h)(1), (e)(1). Plaintiff has elected to serve
Defendant as provided by Florida law.
Section 48.062, Florida Statutes, governs service on a limited liability
company (“LLC”). Service on an LLC may be effected under Section 48.062(1) by
serving the LLC’s registered agent or the registered agent’s employee. Fla. Stat. §
48.062(1). If the registered agent cannot be located or is unavailable for service, a
member of a member-managed LLC or a manager of a manager-managed LLC may
be served. Fla. Stat. § 48.062(2). If a member or manager is not available during
regular business hours to accept service on behalf of the limited liability company,
the LLC may designate an employee of the LLC to accept such service. Fla. Stat. §
48.062(2)(c). “After one attempt to serve a member, manager, or designated
employee has been made, process may be served on the person in charge of the
limited liability company during regular business hours.” Id. If, “after reasonable
diligence,” service of process cannot be completed on one of the aforementioned
individuals, service may then be effected upon Florida’s Secretary of State. Fla. Stat.
§ 48.062(3). If the address provided for the registered agent, member, or manager is a
residence or private mailbox, service on the limited liability company, domestic or
foreign, may be made by serving the registered agent, member, or manager in
accordance with Section 48.031, Florida Statutes. Fla. Stat. § 48.062(4).
A search on the Florida Department of State, Division of Corporation,
website (sunbiz.org) indicates that Defendant Boffil’s registered agent is Livet Boffil

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Llacer, located at 5201 Blue Lagoon Drive, Suite 928, Miami, Florida 33126. Boffil’s
principal and mailing address are 5201 Blue Lagoon Drive, Suite 928, Miami,
Florida 33126. Boffil is shown as having two manager-members: Livet Boffil Llacer
and Orestes Boffil, both located at the same address, 5201 Blue Lagoon Drive, Suite
928, Miami, Florida 33126.
The return of service filed in the record states that Boffil was served on
December 18, 2014 by leaving the summons and Complaint with Clara Llacer, as
“Co-Resident/Mother of Livet Boffil Llacer who is the Registered Agent of [Boffil
Superior Concrete Finish, LLC]” at the address, 4274 SW 161 Place, Miami, Florida
33185. (ECF No. 8). I am unable to determine, based solely on this information, that
service of process was properly effected on Boffil. There is no provision of Section
48.062, Florida Statutes, which permits service on an LLC by serving the registered
agent’s mother who resides with him. Moreover, the address provided for the
registered agent and managers of Boffil does not appear to be a residence or private
mailbox; therefore, Section 48.062(4) is inapplicable.
III.

CONCLUSION

For the foregoing reasons it is ORDERED and ADJUDGED that Plaintiff’s
Motion for Entry of a Default Final Judgment (ECF No. 14) is DENIED without
prejudice. If appropriate, Plaintiff shall re-file an Amended Motion for Entry of a
Default Final Judgment with additional support addressing the deficiencies noted
herein within fourteen (14) days of the entry of this Order.
2015.

DONE and ORDERED in chambers, at Miami, Florida, this 27th day of July

Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record

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