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 Default (Doc. 11) filed on October 22, 2017. On
July 28, 2017, Plaintiff filed a complaint against
Defendants, Del H. Ackerman and 6 to 12 Store 32 [sic]
d/b/a Del's 24 Hour Food Store (collectively,
“Defendants”), alleging violations of the
Americans with Disabilities Act, 42 U.S.C. et seq.
Doc. 1. On September 19, 2017, Plaintiff filed a Return of
Service showing it served both Defendants a true copy of the
Summons and Complaint on August 16, 2017 by substitute
service. Docs. 9, 10. To date, Defendants have not appeared
in this action.
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
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). If the address for the
registered agent is a private residence,  service on the
corporation may be made by serving the registered agent in
accordance with Florida Statutes Section 48.031. Fla. Stat.
§ 48.081(3)(b). Section 48.031 permits substitute
service on the spouse of a person so long as the spouse is
not an adversary in the action. Fla. Stat. §
48.031(2)(a). Here, the Affidavit of Service states that a
process server from Mercuryserve, Inc. served a true copy of
the Summons and Complaint upon Teresa Ackerman, spouse of Del
Ackerman, registered agent. Doc. 9. Service of process
therefore was properly effected under Federal Rule of Civil
Procedure Fed.R.Civ.P. 4(h).
regard to an individual, service can also be made in
accordance with state law for serving a summons. Fed. R. Civ.
Pro. (e)(1). As previously discussed, Florida law provides
for substitute service on a person's spouse so long as
the spouse is not an adversary in the action. Fla. Stat.
§ 48.031(2)(a). Here, the Affidavit of Service states
that a process server from Mercuryserve, Inc. served a true
copy of the Summons and Complaint upon Teresa Ackerman,
spouse of Del Ackerman. Doc. 10. Service of process therefore
was properly effected under Federal Rule of Civil Procedure
to Rule 12(a)(1)(A), Federal Rules of Civil Procedure, a
defendant must serve an answer within 21 days after being
served with the summons and complaint. Defendants have failed
to do so within the time period; therefore, the Delbert
Ackerman. See Collier County Property Appraiser,
entry of Clerk's Default pursuant to Rule 55(a), Federal
Rules of Civil Procedure, and Middle District of Florida
Local Rule 1.07(b) is appropriate.
it is hereby
Motion for Default (Doc. 11) is GRANTED. The
Clerk is directed to enter a Clerk's Default against
Defendants, Del Ackerman and 6 to 12 Store #2, Inc.
 This appears to be a typographical
error. According to www.sunbiz.org, the proper name
for the corporation is 6 to 12 Store #2, Incorporated, and
there is no listing for “6 to 12 Store 32, Inc.”
The Court finds that because the registered agent for 6 to 12
Store #2, Inc. was properly served, this error is harmless.
Fed. R. Civ. Pro. 61. Accordingly, the court will sua