Opinion
Case No.: 8:09-cv-1129-T-24 MAP.
January 8, 2010
ORDER
This cause comes before the Court on an unopposed Motion to Execute Alternative Service by Publication and Issue Notice of Action by Clerk filed by Plaintiff Auto-Owners Insurance Company ("Auto-Owners"). (Doc. No. 19.) Auto-Owners has been unable to effectuate actual service of process on Defendant Emerald Star Casino Resorts, Inc. or Defendant Bonnie L. Cato because, it appears, that these defendants have been concealing their whereabouts. Auto-Owners now seeks to have the Clerk issue a Notice of Action as authorized by Florida Statutes 49.011 and 49.021 for constructive service by publication.
Federal Rules of Civil Procedure 4(e) and 4(h) together permit service on an individual and on a corporation to be completed in accordance with state law. Florida Statutes 49.011 and 49.021 provide for constructive service by publication when a defendant conceals his or her whereabouts. In accordance with that procedure, Auto-Owners has filed an affidavit of its counsel that establishes the due diligence and the elements to support service of process by publication on these defendants. Therefore, Auto-Owners requests leave of the Court to execute service of process on Defendants Emerald Star Casino Resorts, Inc. and Bonnie L. Cato by publication of a Notice of Action in the St. Petersburg Times, which is the main newspaper in Pinellas County wherein the defendants were last known to be located.
Auto-Owners sufficiently has demonstrated that constructive service of process under Florida Statutes 49.041 and 49.051 is necessary, as these defendants have attempted to conceal their whereabouts in order to avoid actual service. Accordingly, Auto-Owners motion is GRANTED. The Clerk is directed to issue the attached Notice of Action as to Defendants Emerald Star Casino Resorts, Inc. and Bonnie L. Cato.
DONE AND ORDERED at Tampa, Florida.
NOTICE BY PUBLICATION
United States District Court, Middle District of Florida, Tampa Division Case No.: 8:09-cv-01129-T-24MAP
AUTO-OWNERS INSURANCE COMPANY, a Michigan corporation, Plaintiff, vs. EMERALD STAR CASINO RESORTS, INC., a Nevada corporation, BONNIE L. CATO, BRUCE E. CORRIGAN and TINA J. CORRIGAN, Defendants.
Requested by: Michael S. Rywant, Esquire Kerry C. McGuinn, Jr., Esquire, Rywant, Alvarez, Jones, Russo Guyton, P.A., 109 North Brush Street, Suite 500, Tampa, Florida, 33602, United States; Phone: (813)-229-7007: Fax (813)-223-6544.
To: (1) EMERALD STAR CASINO RESORTS, INC., a Nevada Corporation that lists its registered agent and principle address with the Florida Department of State, Division of Corporations as follows: Registered Agent Charles Cato, 8285 30TH Avenue N, St. Petersburg, Florida 33710; and (2) BONNIE L. CATO, a natural Defendant whose last known address in Florida was 8285 30TH Avenue N, St. Petersburg, Florida 33710.
Nature of the Action or Proceeding: YOU HAVE BEEN SUED. You may employ an attorney. If you or your attorney do not file a written answer to the Complaint, or a responsive pleading pursuant to Rule 12 of the Federal Rules of Civil Procedure, with the Clerk of the U.S. District Court for the Middle District of Florida, Tampa Division, Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602; (813)-301-5400, and serve a copy on plaintiff's counsel, on or before 60 days after the first date of publication of this Notice, a default judgment may be taken against you.
The Complaint is a Declaratory Judgment action which seeks a declaration from the Court that plaintiff has no duty to defend or indemnify Bonnie L. Cato, and Emerald Star Casino Resorts, Inc., for damages arising out the claims asserted against them in the underlying lawsuit brought by Bruce E. Corrigan, and Tina J. Corrigan in Case No. 09-340-CI11, in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida, Civil Division, whether awarded by settlement, judgment, Coblenz Agreement, stipulated judgment, and/or any other type of agreement.
The United States District Court, Middle District of Florida has authority in this suit to enter a declaratory judgment which will be binding upon you.
Issued and given under my hand and the seal of the U.S. District Court, Middle District of Florida, Tampa Division, this _____ day of ____________________, 2010 by ____________________, Clerk of the U.S. District Court, Middle District of Florida, Tampa Division, Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602