United States District Court, N.D. Florida, Tallahassee Division
ROBERT J. SLUDER, Plaintiff,
JULIE JONES, et al., Defendants.
REPORT AND RECOMMENDATION
MICHAEL J. FRANK, UNITED STATES MAGISTRATE JUDGE
matter was referred to the undersigned by the clerk of court.
For the reasons stated below, the undersigned respectfully
recommends that the District Court deny Plaintiff's
“Motion for Default Judgment” (Doc.
a prisoner proceeding pro se and in forma
pauperis, filed a civil rights complaint under 42 U.S.C.
§ 1983, naming five defendants: Julie Jones, Warden
Poynter, Dr. Gerald Amatucci, Rhonda Davis, and Dr. Rohana.
(Doc. 4). On July 25, 2018, by order of Magistrate Judge
Gary. R. Jones, the court directed the United States Marshals
Service to serve Plaintiff's complaint on only three of
the five Defendants listed in Plaintiff's complaint:
Julie Jones, Dr. Gerald Amatucci, and Dr. Rohana. (Doc. 9).
Judge Jones did not direct service on Defendants Rhonda Davis
and Warden Poynter because the Plaintiff failed to state a
plausible claim against these individuals. (id. at
to information provided by Plaintiff-now known to be
incorrect- Judge Jones sent the summons for Dr. Amatucci to
the special process server at the Central Office of the
Florida Department of Corrections. Likewise, pursuant to
(incorrect) information provide by Plaintiff in his
complaint, Judge Jones sent the summons for Dr. Rohana to the
special process server at Zephyrhills Correctional
Institution. (Docs. 4, 9). The summons for Dr. Amatucci was
returned unexecuted because Dr. Amatucci is not an FDOC
employee. (see Doc. 11). On August 8, 2018, the
summons for Dr. Amatucci was reissued and mailed to 501 South
Calhoun Street, Tallahassee, Florida 32399, which is the
address that Plaintiff provided for Dr. Amatucci. (Docs. 4,
12). The summonses for Dr. Gerald Amatucci and Dr. Rohana
were never returned. Plaintiff has not established that Dr.
Amatucci and Dr. Rohana ever received the summonses and
complaint, and the record suggest otherwise. Despite this,
Plaintiff move for entry of a default judgment. (Doc. 18).
55(a) of the Federal Rules of Civil Procedure provides that
“[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.” Fed.R.Civ.P.
55(a). Thus, under this Rule, a “district court may
enter a default judgment when a defendant has failed to plead
or defend.” Estate of Faull by Jacobus v.
McAfee, 727 Fed.Appx. 548, 551 (11th Cir. 2018);
Surtain v. Hamlin Terrace Found., 789 F.3d 1239,
1244 (11th Cir. 2015). Default judgments are generally
disfavored, however, in light of the important policy of
determining cases on their merits. Surtain, 789 F.3d
at 1244-45; Fla. Phy.'s Ins. v. Ehlers, 8 F.3d
780 (11th Cir. 1993); Gulf Coast Fans, Inc. v. Midwest
Elecs. Importers, Inc., 740 F.2d 1499, 1510 (11th Cir.
1984). Entry of a default and a default judgment is warranted
only where the pleadings provide a sufficient basis.
Id. at 1245. Furthermore, “district courts
have broad discretion to determine whether a default judgment
is appropriate in a given case . . . .” Estate of
Faull by Jacobus, 727 Fed.Appx. at 552.
default should not be entered against a defendant who has
never been served with the complaint. Kelly v.
Florida, 233 Fed.Appx. 883, 885 (11th Cir. 2007).
Indeed, “[s]ervice of process is a jurisdictional
requirement: a court lacks jurisdiction over the person of a
defendant when that defendant has not been served.”
Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317
(11th Cir. 1990). A “federal court does not have
jurisdiction over a defendant unless the defendant has been
properly served under Fed.R.Civ.P. 4.” Direct Mail
Specialists Inc. v. Eclat Computerized Tech., 840 F.2d
685, 688 (9th Cir. 1988). “Before a court may exercise
personal jurisdiction over a defendant, the procedural
requirement of service of summons must be satisfied.
‘[S]ervice of summons is the procedure by which a court
having venue and jurisdiction of the subject matter of the
suit asserts jurisdiction over the person of the party
served.'” Omni Capital Int'l, Ltd. v.
Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108
S.Ct. 404, 409 (1987) (quoting Mississippi Publishing
Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242,
246 (1946)). Generally, when service of process was not
properly effected, “the court has no power to render
judgment, ” and any judgment so entered would be void.
In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1299
(11th Cir. 2003); Varnes v. Local 91, Glass Bottle
Blowers Ass'n, 674 F.2d 1365, 1368 (11th Cir. 1982)
(holding that a judgement was void under Rule 60(b)(4)
because the defendant was not properly served).
is not entitled to entry of a default or a default judgment.
Defendants Dr. Gerald Amatucci and Dr. Rohana have not been
served with the complaint. Unless and until they are served
with the complaint, this court lacks jurisdiction over these
defendants. Furthermore, even if this court had personal
jurisdiction over these defendants, a defendant is not in
default unless and until service of process is effected.
See Abele v. City of Brooksville, Fla., 273
Fed.Appx. 809, 811 (11th Cir. 2008) (affirming the district
court's denial of a motion for default judgment because
the plaintiff failed to show demonstrate adequate service of
process). Because that has not happened with respect to Dr.
Amatucci and Dr. Rohana, they cannot be in default.
Accordingly, there is no basis for this court to issue a
default or a default judgment, and Plaintiff's motion
should be denied.
on the foregoing, the undersigned respectfully
“Motion for default Judgment” (Doc. 18) be
TO THE PARTIES
to these proposed findings and recommendations must be filed
within fourteen (14) days after being served a copy thereof.
Any different deadline that may appear on the electronic
docket is for the court's internal use only, and does not
control. A copy of objections shall be served upon all
other parties. If a party fails to object to the magistrate
judge's findings or recommendations as to any particular
claim or issue contained in a report and recommendation, that
party waives the right to challenge on ...