United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Plaintiff's Motion for
Default Judgment (Doc. 10). For the reasons that follow, I
respectfully recommend that the motion be
March 29, 2018, Plaintiff filed a petition for confirmation
of an arbitration award entered on February 27, 2018 by the
Arbitration Panel in Daytona Beach, Florida (Doc. 1).
Defendant has not appeared in this case. On April 26, 2018,
the Clerk of Court entered a default against Defendant,
pursuant to Fed.R.Civ.P. 55(a) (Doc. 9). On April 30, 2018,
Plaintiff sought entry of a default judgment against
Defendant (Doc. 10).
a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend as provided by
these rules and that failure is shown by affidavit or
otherwise, the clerk must enter the party's
default.” Fed.R.Civ.P. 55(a). The mere entry of a
default by the Clerk does not necessarily require the court
to enter a default judgment. DIRECTV, Inc. v.
Trawick, 359 F.Supp.2d 1204, 1206 (M.D. Ala. 2005). To
enter a judgment, pursuant to Fed.R.Civ.P. 55(b), there must
be sufficient basis in the pleadings to support the relief
sought. Id. “The defendant is not held to
admit facts that are not well-pleaded or to admit conclusions
of law. In short . . . a default is not treated as an
absolute confession of the defendant of his liability and of
the plaintiff's right to recover.” Nishimatsu
Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d
1200, 1206 (5th Cir. 1975).
Appropriateness of the Clerk's Entry of Default
plaintiff may serve a corporate defendant by,
[D]elivering 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 and-if the agent is one authorized by statute and the
statute so requires-by also mailing a copy of each to the
Fed. R. Civ. P. 4(h)(1)(B). A plaintiff may also serve a
defendant by “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[.]” Fed.R.Civ.P. 4(h)(1)(A), 4(e)(1). Florida
Statutes permit process to be served on a corporation by
serving any one of the following persons: (a) the president,
vice president or other corporate head; (b) the cashier,
treasurer, secretary, or general manager; (c) any corporate
director; (d) any officer or business agent residing in
Florida; (e) an agent designated by the corporation under
Fla. Stat. 48.091. See Fla. Stat. § 48.081. If
the address provided for the registered agent, officer, or
director is a residence or private residence, “service
on the corporation may be [made by] serving the registered
agent, officer, or director in accordance with s.
48.031.” Id. at § 48.081(3)(b). Section
48.031, permits a process server to effect service on
“any person residing therein who is 15 years of age or
older ...” Fla. Stat. § 48.031(1)(a).
return of service shows that Blake Murray of Unisearch, Inc.
was served on behalf of the corporation (Doc. 5). Unisearch
is the registered agent, according to Washington state
corporation records. The official address listed for registered
agent Unisearch is: 1780 Barnes Boulevard SW, Tumwater,
Washington 98512 (Doc. 5 at 2).Plaintiff served Defendant on
March 30, 2018 (Doc. 5 at 1). Pursuant to Rule 4(h) and Fla.
Stat. § 48.031(1)(a), service on Defendant was proper.
Upon being served with the summons and complaint, Defendant
was required to respond on or before April 20, 2018.
See Fed.R.Civ.P. 12(a)(1)(A)(i) (“A defendant
must serve an answer within 21 days after being served with
the summons and complaint[.]”). Defendant has failed to
respond to the complaint and the time within to do so has
passed. Thus, the clerk's default was properly entered
Confirmation of Arbitration Award
to the FAA, a party may apply to a district court for an
order confirming an arbitration award, and “the court
must grant such an order unless the award is vacated,
modified, or corrected as prescribed” in the statute. 9
U.S.C. § 9. “Judicial review of arbitration awards
under the FAA is very limited.” Fornell v. Morgan
Keegan & Co, Inc., No. 6:12-cv-38-Orl-28TBS, 2012 WL
3155727, at *1 (M.D. Fla. Aug. 3, 2012). The statute
“presumes that arbitration awards will be confirmed and
enumerates only four narrow bases for vacatur.”
Id. (internal citation omitted).
has presented a valid arbitration award to the Court (Doc.
1-2). None of the bases for vacatur apply here. See Univ.
Commons-Urbana, Ltd. v. Universal Constructors, Inc.,
304 F.3d 1331, 1339 (11th Cir. 2002) (It is well established
that to vacate an arbitration award due to the “evident
partiality” of an arbitrator, the movant bears the
burden of showing that “(1) an actual conflict exists,
or (2) the arbitrator knows of, but fails to disclose,
information which would lead a reasonable person to believe
that a potential conflict exists.”) (quoting
Gianelli Money ...