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Wittgenfeld v. Lockett

United States District Court, M.D. Florida, Fort Myers Division

May 18, 2017

DALLAS WITTGENFELD and DANIEL A. BERNATH, Plaintiffs,
v.
ROBERT LOCKETT, DIANE SHIPLEY, DON SHIPLEY and EXTREME SEAL ADVENTURES, Defendants.

          ORDER

          MAC R. McCOY UNITED STATE? MAGISTRATE JUDGE

         This cause comes before the Court on Plaintiffs' Motion for Entry of Clerk's Default (Doc. 26) filed on March 24, 2017. Plaintiffs contend that Defendants Diane Shipley, Don Shipley, and Extreme Seal Adventures have been served and have failed to plead or otherwise defend this case. (Id. at 1-2). Plaintiffs request entry of a clerk's default against Diane Shipley, Don Shipley, and Extreme Seal Adventures. (Id.).

         Pursuant to Fed.R.Civ.P. 55(a), “[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.” Prior to directing the Clerk to enter a default, however, the Court must first determine whether Plaintiffs properly effectuated service of process. See Chambers v. Halsted Fin. Servs., LLC, 2:13-cv-809-FTM-38, 2014 WL 3721209, at *1 (M.D. Fla. July 28, 2014). Plaintiffs have the burden of establishing effective service of process. See Zamperla, Inc. v. S.B.F. S.R.L, No. 6:13-cv-1811-Orl-37KRS, 2014 WL 1400641, at *1 (M.D. Fla. Apr. 10, 2014).

         Service for individuals is governed by Fed.R.Civ.P. 4(e). The Rule states:

[A]n individual . . . may be served in a judicial district of the United States by:
(1) following 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; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e).

         Additionally, Fed.R.Civ.P. 4(h) governs service of business entities. The Rule states that an entity must be served:

(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an ...

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