United States District Court, M.D. Florida, Fort Myers Division
LAURA LOSACANO, DANETTE BEDERKA, LEIGH KUNDRICK, COLLEEN SANCHEZ, VICTORIA DULL, SUSAN JULIAN and WYNONA PARR, on behalf of herself and other employees similarly situated Plaintiffs,
ANTHONY 57, INC., ANTHONY SERRAGO and SABAL SPRINGS HOMEOWNERS ASSOCIATION, INC., Defendants.
MIRANDO United States Magistrate Judge
matter comes before the Court upon review of Plaintiffs'
Motion for Entry of Default Against All Defendants (Doc. 16)
filed on April 13, 2017. On February 8, 2017, Plaintiffs
filed a Collective Action Complaint for Damages pursuant to
the Fair Labor Standards Act against Anthony 57, Inc.,
Anthony Serrago, and Sabal Springs Homeowners Association,
Inc. Doc. 1. On March 10, 2017, Plaintiffs amended their
Complaint. Doc. 11. On March 31, 2017, Plaintiffs filed an
Affidavit of Service as to each Defendant. Docs. 12; 13; 14.
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 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).
respect to individual Defendant Anthony Serrago, the
Affidavit of Service states that on March 14, 2017, a process
server for Attorneys Subpoena Service, Inc. individually
served a true copy of the Summons and Amended Collective
Action Complaint upon Anthony Serrago, personally, at his
address in 3400 Clubview Drive, North Fort Myers, Florida
33917. Doc. 14 at 1. Service of process therefore was
properly effected under Federal Rule of Civil Procedure 4(e).
regard to a corporation, service on a corporation can be made
by any manner accepted in the state 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). Section 48.081, Florida
Statutes, provides a hierarchy for service of process upon a
corporation. A private corporation may be served by serving
process on the president, vice president, or other head of
the corporation, and in the absence of any such persons, on
other corporate employees, including any officer or director.
Fla. Stat. § 48.081(1)(a)-(d). As an alternative,
process may be served on a registered agent of the
corporation, or an employee of the registered agent.
Id. § 48.081(3)(a). Here, the Affidavit of
Service for Anthony 57, Inc. d/b/a Anthonys at Sabal Springs
states that on March 14, 2017, a process server for Attorneys
Subpoena Service, Inc. served a true copy of the Summons and
Amended Collective Action Complaint upon Anthony Serrago,
registered agent. Doc. 12 at 1. Service of process therefore
was properly effected under Federal Rule of Civil Procedure
Springs Homeowners Association, Inc. appeared in this case on
May 3, 2017 and requested an extension of time to respond to
Plaintiffs' Amended Complaint. Doc. 18. Plaintiffs
consented to the requested extension, and the Court granted
the motion. Doc. 19. On May 11, 2017, Sabal Springs
Homeowners Association, Inc. filed a motion to dismiss
Plaintiffs' Amended Complaint for failure to state a
claim; thus, the motion for entry of a Clerk's default as
to this Defendant is due to be denied.
it is hereby
Plaintiffs' Motion for Entry of Default Against All
Defendants (Doc. 16) is GRANTED in part and DENIED in part.
Clerk is directed to enter a Clerk's Default against
Defendants Anthony 57, Inc. and ...