United States District Court, M.D. Florida, Fort Myers Division
U.S. BANK NATIONAL ASSOCIATION, as Trustee Relating to Chevy Chase Funding LLC Mortgage Backed Certificates Series 2006-2 Plaintiff,
CHRISTOPHER J. SARARO, ALFREDO J. SARARO, III, UNKNOWN SPOUSE OF ALFREDO J. SARARO, III, GRANDE EXCELSIOR AT THE GRANDE PRESERVE CONDOMINIUM ASSOCIATION, INC., THE DUNES OF NAPLES PROPERTY OWNERS ASSOCIATION, INC., GRANDE PRESERVE AT THE DUNES COMMUNITY ASSOCIATION, INC., CHICAGO TITLE INSURANCE COMPANY, PNC BANK, N.A., UNITED STATES OF AMERICA DEPARTMENT OF TREASURY, UNITED STATES ATTORNEY, PARTIES IN POSSESSION UNKNOWN TENANT'35;1, PARTIES IN POSSESSION UNKNOWN TENANT '35;2 and SUMMER PARHAM SARARO, Defendants.
MIRANDO, United States Magistrate Judge
matter comes before the Court upon review of Plaintiff's
Second Motion for Default as to Defendant, PNC Bank, N.A.
(Doc. 93) filed on May 5, 2017. Plaintiff seeks a Clerk's
entry of default as to Defendant PNC Bank, N.A., Successor by
Merger to National City Bank (“PNC Bank”). Doc.
93. Plaintiff attached an Amended Affidavit of Process Server
to the present motion. Doc. 93-1.
September 26, 2016, Plaintiff filed a Verified Complaint for
Foreclosure (“Complaint”). Doc. 1. On October 19,
2016, Senior United States District Judge John E. Steele
dismissed the Complaint for lack of subject-matter
jurisdiction and directed Plaintiff to file an amended
complaint. Doc. 43. On October 25, 2016, Plaintiff filed an
Amended Verified Complaint for Foreclosure (“Amended
Complaint”) against various defendants including PNC
Bank. Doc. 46.
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 or other unincorporated association can be
made by any manner accepted in the state where the district
court is located or where service is made. Fed.R.Civ.P.
4(h)(1)(A), (e)(1). Section 655.0201(2) of the Florida
Statutes outlines service of process on a financial
institution and states: “A financial institution
authorized by federal or state law to transact business in
this state may designate with the Department of State a place
or registered agent located within the state as the financial
institution's sole location or agent for service of
process, notice, levy, or demand.” Fla. Stat. §
655.0201(2). If a financial institution has no registered
agent or service cannot be made in accordance with the above
section, then “service may be made to any officer,
director, or business agent of the financial institution at
its principal place of business or at any other branch,
office, or place of business in the state.” Fla. Stat.
the Amended Affidavit of Process Server states that on
September 27, 2016, a process server for ATA Process, LLC
delivered a true copy of the Summons, Notice of Lis Pendens,
and the Complaint with Exhibits A, B, C, D, E to Noel
Arteaga, a “universal banker” and authorized
employee for PNC Bank, at 1915 N. Dale Mabry Highway, Tampa,
FL 33607. Doc. 93-1. According to the affidavit, Arteaga
represented to the process server that he is an authorized
employee/representative of PNC Bank and is authorized to
accept service of process on behalf of PNC Bank. Id.
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). Furthermore, Plaintiff states that
it properly served PNC Bank under section 655.0201(3) of the
Florida Statutes because PNC Bank does not have any
registered agent in Florida, and Arteaga is an authorized
business agent of the financial institution at a branch
located in Florida. Doc. 93 at 3. As a result, the Court
finds that service of process was properly effected under
Rule 4(h) of the Federal Rules of Civil Procedure.
addition, Plaintiff properly served the Amended Complaint
upon PNC Bank. Docs. 47 at 2; 93 at 2. Rule 5(a)(1)(B) states
that a pleading filed after the original complaint must be
served on every party unless ordered otherwise by the Court.
Fed.R.Civ.P. 5(a)(1)(B). Under Rule 5(b), a party may serve
an amended complaint by mailing it to the person's last
known address. Fed.R.Civ.P. 5(b)(2)(C). Service under Rule
5(b) is allowed when the amended complaint does not assert
new claims for relief. Amarelis v. Notter Sch. of
Culinary Arts, LLC, No. 6:13-cv-54-Orl-31KRS, 2014 WL
5454387, at *3 (M.D. Fla. Oct. 27, 2014). Here, the Amended
Complaint does not allege new claims or claims against new
parties. Docs. 1, 46. The Complaint and the Amended Complaint
allege Counts One of Foreclosure, Two of Equitable Lien, and
Three of Breach of Note against the same thirteen defendants.
Docs. 1, 46. As a result, Plaintiff is permitted to serve a
copy of the Amended Complaint on PNC Bank by mailing it to
PNC Bank's last known address. See Amarelis,
2014 WL 5454387, at *3; Docs. 47 at 2, 93 at 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. PNC Bank has failed to
do so within the time period; therefore, entry of Clerk's
Default pursuant to Rule 55(a) of the Federal Rules of Civil
Procedure and Middle District of Florida Local Rule 1.07(b)
it is hereby
Plaintiffs Second Motion for Default as to Defendant, PNC
Bank, N.A. (Doc. 93) is GRANTED.
Clerk is directed to enter a Clerk's Default against
Defendant PNC Bank, N.A., Successor ...