United States District Court, M.D. Florida, Fort Myers Division
MIRANDO United States Magistrate Judge
matter comes before the Court upon review of Plaintiff's
Application for Entry of Default against Defendants Douglas
Winland (“Winland”), Newline Holdings, LLC
(“Newline”), DABTLC5, LLC (“DABTLC5”)
and the State of Florida (Doc. 28) filed on March 31, 2017.
Plaintiff seeks a Clerk's entry of default as to Winland,
Newline, DABTLC5, and the State of Florida. Doc. 28. On
February 1, 2017, Plaintiff filed a Complaint against various
defendants including Winland, Newline, DABTLC5, and the State
of Florida. Doc. 1. Plaintiff filed a Proof of Service as to
Newline on February 15, 2017, a Proof of Service as to the
State of Florida on February 23, 2017, an Affidavit of
Service as to DABTLC5 on March 3, 2017, and a Return of
Service as to Winland on March 9, 2017. Docs. 13, 16, 17, 22.
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.
M.D. 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 Winland, 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). Here, the Return of
Service states that on March 3, 2017, A.J. Smith, a sheriff
for Franklin County, Florida, delivered a copy of the
Summons, the Complaint, and a Proof of Service to Winland at
1760 HWY 67 North, Carrabelle, FL 32322. Doc. 22. Service of
process therefore was properly effected under Federal Rule of
Civil Procedure 4(e). Fed.R.Civ.P. 4(e)(2)(A).
regard to Newline and DABTLC5, service on a corporation,
partnership, or other unincorporated association that is
subject to suit under common name, can be made by any manner
accepted in the state where the district court is located or
“by delivering a copy of the summons and of the
complaint to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive
service of process[.]” Fed.R.Civ.P. 4(h)(1)(A), (e)(1);
See Fitzpatrick v. Bank of New York Mellon, 580 F.
App'x 690, 693 (11th Cir. 2014) (stating that a Plaintiff
may serve process on a limited liability company pursuant to
Rule 4(h) of the Federal Rules of Civil Procedure).
Statutes provide that process against a limited liability
company may be served upon, inter alia, the
company's registered agent or an employee of the
registered agent. Fla. Stat. § 48.062(1). Each limited
liability company shall designate and continuously maintain
in this state a registered office. Fla. Stat. §
605.0113(1)(a). The registered agent must be an individual
who resides in this state or a foreign or domestic entity
authorized to transact business in this state and whose
business address is identical to the address of the
registered office. Fla. Stat. § 605.0113(1)(b)(1).
DABTLC5, the Affidavit of Service states that on March 2,
2017, a process server for On Time Process Service delivered
a true copy of the Summons and the Complaint to David A.
Berger, who is a registered agent for DABTLC5, at 2909
Shelton Way, Plano, TX 75093. Doc. 17. For Newline, the Proof
of Service states that on February 13, 2017, a special
process server personally served the summons upon Newline c/o
Agent Lawrence C. Rubin at 111 E. Wacker Drive, #2800,
Chicago, IL, 60601. Doc. 13. A search of the Office of the
Illinois Secretary of State website reveals that
Newline's registered agent is Lawrence C. Rubin at 111 E.
Wacker Dr. Ste. 2800, Chicago, IL 60601. 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)
(holding that 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 upon Newline
and DABTLC5 therefore was properly effected under Rule 4(h)
of the Federal Rules of Civil Procedure.
regard to the State of Florida, Rule 4(j) of the Federal
Rules of Civil Procedure governs service of process upon a
state, a municipal corporation, or any other state-created
governmental organization that is subject to a lawsuit.
Fed.R.Civ.P. 4(j)(2). Pursuant to Rule 4(j), the process
server may deliver a copy of the summons and the complaint to
the chief executive officer, or serve a copy of the summons
and the complaint “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). In Florida, service
of process against the state “shall be served on the
state attorney or an assistant state attorney for the
judicial circuit within which the action is brought and by
sending two copies of the process by registered or certified
mail to the Attorney General.” Fla. Stat. §
the Proof of Service states that on February 21, 2017, Victa
M. Santiago, a revenue officer, served the summons on Sandy
Okey, who is designated by law to accept service of process
on behalf of the state attorney's office. Doc. 16.
Neither the Proof of Service nor the present motion, however,
alleges that Plaintiff sent two copies of the process by
registered or certified mail to the Attorney General,
pursuant to section 48.121 of the Florida Statutes. Fla.
Stat. § 48.121. As a result, it is not clear whether
service of process upon the State of Florida was properly
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. Here, Newline,
DABTLC5, and Winland have failed to do so within the time
period; therefore, the entry of Clerk's Default as to
Newline, DABTLC5, and Winland pursuant to Federal Rule of
Civil Procedure 55(a) and Middle District of Florida Local
Rule 1.07(b) is appropriate.