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
Motion for Entry of Clerk's Default Against Defendant Z
Top Logistics, Inc. (“Z Top”) (Doc. 15) filed on
January 3, 2017 and Plaintiff's Second Verified Motion to
Enlarge Time for Service of Process under F.R.C.P. 4(m) (Doc.
18) filed on February 7, 2017.
Plaintiff's Motion for Entry of Clerk's Default
Against Z Top (Doc. 15)
seeks a Clerk's entry of default as to Z Top. Doc. 15.
Plaintiff filed an Affidavit of Service. Doc. 9. Pursuant 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).
on a corporation can be made by any manner accepted in the
state where the district court is located or where service is
made 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).
the Affidavit of Service states that on August 12, 2016, a
process server for Elite Process Serving and Investigations,
Inc., delivered a true copy of the Summons in a Civil Action,
Civil Cover Sheet and Civil Action Complaint against Motor
Carrier Under 49 U.S.C. 14706 and for Other Relief upon Sofia
Koval, a manager, at 7935 West 59th Street, Suite B, Summit,
IL 60501. Doc. 9. 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 Z Top therefore was properly
effected under Rule 4(h) of the Federal Rules of Civil
to Federal Rule of Civil Procedure 12(a)(1)(A), a defendant
must serve an answer within 21 days after being served with
the summons and complaint.
has failed to do so within the time period; therefore, the
entry of Default pursuant to Federal Rule of Civil Procedure
55(a) and Middle District of Florida Local Rule 1.07(b) is
Plaintiff's Second Verified Motion to Enlarge Time for
Service of Process under F.R.C.P. 4(m) (Doc. 18)
August 3, 2016, Plaintiff filed a Complaint against
Defendants. Doc. 1. On November 11, 2016, Plaintiff filed its
first motion to extend time to serve process upon Marynova.
Doc. 11. The Court granted the requested extension and
allowed Plaintiff to serve Marynova on or before January 30,
2017. Doc. 14. On February 7, 2017, Plaintiff filed the
present motion, seeking a ninety (90) day extension of time
to serve process upon Defendant Lyubov Marynova
(“Marynova”) because Marynova is rarely in her
office and has no expected date of return from her visit to
Ukraine. Doc. 18 at 3. Plaintiff seeks the extension of time
to hire a private investigator to locate and serve Marynova.
Id. at 4.
to Rule 4(m) of the Federal Rules of Civil Procedure, a
defendant must be served within 90 days after the complaint
is filed. Fed.R.Civ.P. 4(m). If the plaintiff shows good
cause for not serving a defendant within a specific time
period, the court “must extend the time for an
appropriate period.” Fed.R.Civ.P. 4(m). While the
Federal Rules of Civil Procedure do not define “good
cause, ” case law has specified its limits. For
instance, good cause exists when some outside factor rather
than inadvertence or negligence prevented service.
Lepone-Dempsey v. Carro Cty. Comm'rs, 476 F.3d
1277, 1281 (11th Cir. 2007) (citation omitted). “Courts
will look to ‘factors outside a plaintiff's
control, such as sudden illness, natural catastrophe or
evasion of service of process, ' to determine whether
[the plaintiff] satisfied the ‘good cause'
requirement.” Gambino v. Vi lage
of Oakbrook, 164 F.R.D. 271, 274 (M.D. Fla. 1995)
(citations omitted). Even in the absence of good cause,
however, a district court has the discretion to extend the
time for service of process. Lepone-Dempsey, 476
F.3d at 1281.
the Court will grant the requested extension because
Plaintiff shows that despite making a number of attempts to
locate Marynova, Plaintiff was unable to do so because
Marynova is out of the country. Doc. 18 at 5. The Court
notes, however, that Plaintiff filed the present motion eight
days after its deadline to serve Marynova expired and already
had approximately 250 days to serve Marynova since filing of
the Complaint. Docs. 1, 11. As a result, the ...