United States District Court, M.D. Florida, Fort Myers Division
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Pro Se
Plaintiff's Motion for a Clerk's Default (Doc. 76)
filed on May 4, 2018, and Pro Se Plaintiff's
Motion for Default Judgment (Doc. 78) filed on May 4, 2018.
On May 11, 2018, Counsel for Defendant William Cruz made a
special appearance in response (Doc. 80) arguing the motions
for default should be denied because Cruz was never served in
September 18, 2017, summons was returned unexecuted as to
Defendant Cruz because he no longer worked at that
facility. (Doc. 27). The special appointee provided
a forwarding address for Defendant Cruz at DeSoto
Correctional Institute (DeSoto CI). Service was executed on
the special appointee at DeSoto CI on September 28, 2017. The
special appointee returned service unexecuted because
Defendant Cruz was no longer employed at DeSoto CI. (Doc.
36). No. forwarding address was provided after the September
28, 2017 service. On October 12, 2017, the Department of
Corrections (DOC) provided the Court with Defendant
Cruz's current address. (Doc. 41). However, there is no
entry on the docket sheet showing that Defendant Cruz was
ever served with Plaintiff's complaint.
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.” However, prior to directing the Clerk to
enter a default, the Court must first determine whether
Plaintiff properly effected service of process. ONPOWER,
Inc. v. United Power Line Contractors, LLC, No.
2:15-cv-796-FTM-99MRM, 2016 WL 9049315, at *1 (M.D. Fla. Mar.
14, 2016) (citing Chambers v. Halsted Fin. Servs.,
LLC, 2014 WL 3721209, at *1 (M.D. Fla. July 28, 2014)).
Plaintiff has the burden of establishing effective service of
process. See Zamperla, Inc. v. S.B.F. S.R.L, 2014 WL
1400641, at *1 (M.D. Fla. Apr. 10, 2014).
Cruz argues the motions for default should be denied and the
case against him should be dismissed in accordance with Fed.
R. Civ. 4(m) because he has not been served. Pursuant to Rule
55(a), 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.
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. Those Certain
Underwriters at Lloyd's, London v. Gone Country Motor
Sports, Inc., No. 2:15-CV-669-FTM-38CM, 2016 WL 3344846,
at *1 (M.D. Fla. June 15, 2016) (citing United States v.
Donald, No. 3:09-cv-147-J-32HTS, 2009 WL 1810357, at *1
(M.D. Fla. June 24, 2009). Plaintiff's Motion for a
clerk's default is denied because the record shows that
Defendant Cruz has never been served.
a default judgment under Fed.R.Civ.P. 55(b) may not be
entered if a clerk's default has not first been entered.
Brantley v. Drug Enf't Admin., No.
2:12-CV-361-FTM-99, 2012 WL 6015591, at *1 (M.D. Fla. Dec. 3,
2012) (citing ABS-SOS Plus Partners Ltd. v. Vein Assocs.
of Am., Inc., WL 5191701 * 1-2 (M.D. Fla. Dec. 10, 2008)
(holding that a district court may enter a default judgment
against a properly served defendant who fails to defend or
otherwise appear pursuant to Federal Rule of Civil Procedure
55(b)(2)). The Court notes that a clerk's default has not
been entered against Defendant Cruz nor has he been properly
served. Therefore, a default judgment would be improper at
this time. Brantley v. DEA, 2012 WL 6015591 *1 (M.D.
Fla. Dec. 3, 2012).
Defendant Cruz moves the Court to dismiss the claims against
him for lack of service, circumstances exist beyond
Plaintiff's control that prevented Defendant Cruz from
being served. Under Fed.R.Civ.P. 4(m) the Court at its
discretion can extend time for service even if there is not
good cause to do so. Horenkamp v. Van Winkle & Co.,
Inc., 402 F.3d 1129, 1131-32 (11th Cir. 2005).
Consequently, since circumstances beyond Plaintiff's
control prevented service on Defendant Cruz, the Court will
allow additional time to effectuate service against Cruz.