United States District Court, M.D. Florida, Fort Myers Division
SAFECO INSURANCE COMPANY OF ILLINOIS and SAFECO INSURANCE COMPANY OF AMERICA, Plaintiffs,
JOSEPH A. TREMBLAY, CODY JAMES MORRISON, ROMARRIO ANTHONY SCOTT, RAQUEL MARIA NUNEZ, JULIE LIPPSON and SETH LIPPSON, Defendants.
MIRANDO United States Magistrate Judge
matter comes before the Court upon review of Plaintiffs'
Motion for Entry of Clerk's Default against Defendant
Julie Lippson (Doc. 58) filed on March 22, 2017. Plaintiffs
seek a Clerk's entry of default as to Defendant Julie
Lippson (“Lippson”). Doc. 58. On December 8,
2016, Plaintiffs filed an Amended Petition for Declaratory
Judgment against various defendants including Lippson. Doc.
10. On February 17, 2017, Plaintiffs filed a Return of
Service. Doc. 41.
to Rule 55(a) of the Federal Rules of Civil Procedure,
“[w]hen 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.” Similarly, Middle
District of Florida Local Rule 1.07(b) provides:
When service of process has been effected but no appearance
or response is made within the time and manner provided by
Rule 12, Fed. R. Civ. P., the party effecting service shall
promptly apply to the Clerk for entry of default pursuant to
Rule 55(a), Fed. R. Civ. P.
Fla. R. 1.07(b). Prior to directing the Clerk to enter a
default, the Court must first determine whether Plaintiff
properly effected service of process. United States
v. Donald, No. 3:09-cv-147-J-32HTS, 2009 WL 1810357,
at *1 (M.D. Fla. June 24, 2009).
regard to an individual, the Federal Rules of Civil Procedure
allow for personal service upon an individual within a
judicial district of the United States. Fed.R.Civ.P.
4(e)(2)(A). The process server may deliver a copy of the
summons and complaint to the individual personally, or
“at the individual's dwelling or usual place of
abode or with someone of suitable age and discretion who
resides there.” Fed.R.Civ.P. 4(e)(2)(A), (B).
Alternatively, the Court may follow “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.” Fed.R.Civ.P. 4(e)(1). In
Florida, service of original process may be made on an
individual by leaving a copy of the complaint, petition, or
other initial pleading “at his or her usual place of
abode with any person residing therein who is fifteen years
of age or older and informing the person of their
contents.” Fla. Stat. §48.031(1)(a).
the Return of Service states that on February 16, 2017, a
process server for S&W Process Service personally served
Lippson by delivering a true copy of the Summons in a Civil
Action, Amended Petition for Declaratory Judgment, and
Exhibits A-E to Lippson, at 11500 2nd Ave., Punta Gorda, FL
33955. Doc. 41. Affidavits by process servers constitute a
prima facie showing that defendants have been served.
Udoinyion v. The Guardian Security, 440 F. App'x
731, 735 (11th Cir. 2011) (unsworn and unsigned letters
insufficient to call into question prima facie evidence of
service consisting of process server's sworn return);
Burger King Corp. v. Eupierre, Case No.
12-20197-CIV, 2012 WL 2192438, at *2 (S.D. Fla. June 14,
2012). Service of process therefore was properly effected
under Federal Rule of Civil Procedure 4(e)(2).
to Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure,
a defendant must serve an answer within 21 days after being
served with the summons and complaint. Lippson has failed to
do so within the time period; therefore, the entry of
Clerk's Default pursuant to Federal Rule of Civil
Procedure 55(a) and Middle District of Florida Local Rule
1.07(b) is appropriate.
Plaintiffs filed an unopposed motion to file a second amended
petition because Plaintiffs sought to add a party and
supplement their allegations. Doc. 56. Along with the motion,
Plaintiffs provided a copy of a Second Amended Petition for
Declaratory Judgment (“Second Amended Petition”)
for the Court's review. Doc. 56-1. The Court granted
Plaintiffs' motion and also directed the Clerk of Court
to enter the Second Amended Petition (Doc. 56-1) as a
separate docket entry. Doc. 57 at 3. Before the Clerk of
Court docketed the Second Amended Petition pursuant to the
Court's Order, Plaintiffs separately filed a Second
Amended Petition for Declaratory Judgment (Doc. 59) with six
exhibits (Docs. 59-1, 59-2, 59-3, 59-4, 59-5, 59-6). Upon
review of the file, the Court finds that the Second Amended
Petition for Declaratory Judgment (Doc. 59) is substantively
the same as the Second Amended Petition (Doc. 56-1). As a
result, the Court will deem the Second Amended Petition for
Declaratory Judgment (Doc. 59) as the operative complaint in
it is hereby
1. Plaintiffs' Motion for Entry of Clerk's Default
against Defendant Julie Lippson (Doc. 58) is GRANTED.
2. The Clerk is directed to enter a Clerk's Default
against Defendant Julie Lippson.
3. The Second Amended Petition for Declaratory Judgment (Doc.
59) is deemed as the operative ...