United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
cause comes before the Court on Plaintiff's Motion for
Entry of Default Final Judgment against Defendant with
affidavits (Dkt. 14). After reviewing the file, the Court
concludes that the record fails to establish proper service
on the Defendant and the clerk's default must be set
brought this action to recover unpaid minimum wages and
overtime under the Fair Labor Standards Act, 29 U.S.C. §
201 et seq. (FLSA) against Defendant. The summons is
addressed to “MI SUPERMERCADO, LLC d/b/a Bravo
Supermarket, By Serving its Registered Agent Oqab Abuoqab,
6821 Lake Devonwood Drive, Ft. Myers, FL 33908.” Dkt.
3. The affidavit of service avers that the summons and
complaint were served on “SANA ABUOQUB as SPOUSE of R/A
for MI SUPERMERCADO, LLC D/B/A BRAVO SUPERMARKET at [the
Devonwood Drive address].” Dkt. 7. On Plaintiff's
motion, a clerk's default was entered against MI
Supermercado, LLC, in August 2019. Dkts. 8, 9.
spouse of the registered agent was served. This fact alone,
without more, confirms that proper service was not effected
on the limited liability company. See,
e.g., Pierre v. Little New Orleans 1 Kitchen
& Oyster Bar, L.L.C., No. 6:15-cv-709-Orl-40DAB,
2016 WL 721925, at *2 (M.D. Fla. Feb. 24, 2016) (finding
service on spouse of registered agent of limited liability
company insufficient and citing Accident Ins. Co. v. Blue
Sky Contracting, Inc., No. 3:12-cv-995-J-25MCR, 2013 WL
1881415, at *2 (M.D. Fla. May 6, 2013)).
on a corporation can be made “(A) in the manner
prescribed by Rule 4(e)(1) for serving an individual; or (B)
by delivering [the summons and 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), (B). Rule 4(e)(1), which is
referenced in Rule 4(h)(1)(A), provides that state law must
be followed to properly serve an individual. Without looking
to state law, there is no express option under Rule 4 to
serve a family member of the registered agent.
directed by Rules 4(h)(1)(A) and 4(e)(1), state law
determines whether a spouse of a registered agent may be
served. Florida law provides that process against a limited
liability company may be served on the registered agent or an
employee of the registered agent. Fla. Stat. § 48.062(1)
(2019). The record does not reveal whether Mrs. Abuoqab is an
employee of her husband.
law analysis continues. If the address for the resident agent
is a residence, service may be made on the registered agent
in accordance with section 48.031. Section 48.031(1)(a)
provides for service on a person at his or her “usual
place of abode” by leaving copies with a person
residing there who is fifteen or older. Subsection (2)(a)
provides for substitute service on the spouse based on three
conditions not apparent in this record. It is unclear
whether the address on the summons is the residential address
for the registered agent of Defendant MI Supermercado, LLC.
On this record, the Court finds service of process has not
been established. It is therefore ORDERED AND
ADJUDGED as follows:
1. Plaintiff's Motion for Entry of Default Final Judgment
(Dkt. 14) is denied without prejudice.
2. The clerk's default (Dkt. 9) is vacated and set aside
and the clerk is directed to effect same on the docket.
3. Plaintiff shall either (a) file a renewed motion for entry
of clerk's default on or before September 20, 2019, or
(b) serve Defendant on or before October 10, 2019.
4. Failure to comply with this Order may result in the
dismissal of Plaintiff's claims against Defendant.