United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
C. IRICK UNITED STATES MAGISTRATE JUDGE
cause comes before the Court for consideration without oral
argument on the following motion:
Motion to Quash Service of Process and Set Aside Final
Default Judgments (Doc. 49)
August 6, 2019
it is RECOMMENDED that the motion be GRANTED.
November 13, 2017, Plaintiff filed a complaint alleging that
Defendant knowingly violated the Federal Fair Housing Act and
the Florida Fair Housing Act. Doc. 1. After unsuccessfully
seeking entry of clerk's default against Defendant
multiple times (Docs. 8, 11, 19, 21, 23) and after having
this case closed for a failure to prosecute (Doc. 28), a
Clerk's default (Doc. 25) was eventually entered as to
Plaintiff's amended complaint (Doc. 18, the Amended
Complaint). Plaintiff purportedly served the Amended
Complaint through substituted service upon the Florida
Secretary of State pursuant to Florida Statutes sections
48.062 and 48.181. See Doc. 24 at 2.
24, 2018, Plaintiff filed a motion for default judgment,
which the Court denied for failure to comply with Local Rule
3.01(a). Docs. 26; 27. On September 14, 2018, Plaintiff filed
a renewed motion for default judgment. Doc. 31. Based on that
motion, the undersigned recommended that final default
judgment be entered as to liability but that further
proceedings should occur concerning damages. Doc. 32.
Following an objection to the Report by Plaintiff, the Court
adopted the Report. After a bench trial on damages and
motions for attorney fees and costs, the Court entered an
Amended Final Judgment against Defendant and in favor of
Plaintiff in the amount of $213, 099.08. Doc. 47 (the
Judgment). On July 8, 2019, the case was closed.
August 6, 2019, Defendant filed a motion to quash service and
set aside the Judgment. Doc. 49 (the Motion). In the Motion,
Defendant asserted that it first became aware of this case
following the issuance of the Judgment and asserts that it
was never properly served pursuant to the method of service
required by Florida Statutes section 48.161. Id.
Relying upon several decisions of Florida's intermediate
appellate courts and federal district courts that explicitly
interpret the Florida service statutes to require a party to
comply with the method of service requirements of section
48.161 in making substitute service upon the Florida
Secretary of State pursuant to section 48.181, Defendant
asserted that it was never served properly pursuant to
Florida law, service must be quashed, and the Judgment must
be set aside. Id.
response, Plaintiff conceded that he did not comply with
section 48.161 but asserted - to his credit, correctly - that
neither section 48.062 nor section 48.181 references or
explicitly requires compliance with section 48.161. Doc. 52.
Thus, Plaintiff asserted that Defendant was properly served
because Plaintiff complied with sections 48.062 and 48.181.
Id. Unfortunately, Plaintiff failed to provide any
legal authority for his position and failed to address the
legal authority cited by Defendant. Id. Further,
Plaintiff did not refute Defendant's assertion - or
address its legal authority for the proposition - that if
service was improper, then the Judgement must be set aside.
authorized reply, Defendant maintained its position that
“[s]ections 48.062 and 48.181 merely
permit substitute service on the
Secretary of State, but neither addresses the
method of effective service.”
Doc. 55 at 2 (emphasis in original). Again, relying upon
several decisions of Florida's intermediate appellate
courts, Defendant asserted that Plaintiff's failure to
comply with section 48.161 is fatal to the Judgment. Doc. 55
Rule of Civil Procedure 55(c) provides that the Court
“may set aside entry of default for good cause, and it
may set aside a final default judgment under Rule
60(b).” Rule 60(b) provides that “[o]n motion and
just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding
for the following reasons: . . . (4) the judgment is
void.” The Eleventh Circuit has explained that,
“A judgment can be set aside for voidness where the
court lacked jurisdiction or where the movant was denied due
process.” Stansell v. Revolutionary Armed Forces of
Columbia, 771 F.3d 713, 736 (11th Cir. 2014).
“This includes lack of personal jurisdiction and
defective due process for failure to effect proper
service.” Id. “Generally, where service
of process is insufficient, the court has no power to render
judgment and the judgment is void.'” In re
Worldwide Web Systems, 328 F.3d 1291, 1299 (11th Cir.
2003). Plaintiff neither addressed Rule 60(b)(4) nor provided
any compelling reason why the Court would vary from the
general rule that insufficient service renders judgment void.
course, a plaintiff must comply strictly with state statutes
concerning service of process, and when the Court repeatedly
denied Plaintiff's motions for entry of Clerk's
default, the Court directed Plaintiff to case law explaining
that substitute service pursuant to sections 48.062 and
48.181 must be made pursuant to the methods set forth in
section 48.161. See, e.g., Doc. 21 at 2 (citing
Great Am. Assurance Co. v. Walters, No.
3:15-cv-1008-J-39JBT, 2016 WL 9526443 (M.D. Fla. Apr. 14,
2016) (explaining that service made pursuant to section
48.181 “must strictly comply with section 48.161, which
sets forth the method of substituted service of
process”) (internal citations omitted). Thus, it is
difficult to grasp not only Plaintiff's failure to
properly serve Defendant following the Court's repeated
orders, but also its position in the response that it need
not serve by the method provided by section 48.161. And,
unfortunately, default was entered following Plaintiff's
repeated representations of proper service, and this case
proceeded through the entry of final default judgment.
Defendant is correct that, “It is well established
under Florida law that ‘perfection of substituted
service under section 48.161 requires strict compliance with
the statutory requirements.” Cruz v. Petty Transp.,
LLC, 2008 U.S. Dist. LEXIS 59124, *2 (M.D. Fla. July 14,
2008) (internal citations and quotations omitted). In prior
orders, the Court directed Plaintiff to caselaw explaining
the same principal, but Plaintiff has conceded that he failed
to comply with section 48.161 in effectuating service. So,
service was insufficient in this case. Further, there appears
no reason to avoid the general rule that insufficient service
renders judgment void.
the undersigned respectfully RECOMMENDS that
the Court set aside the Judgment (Doc. 47) as void ...