Summary
denying the plaintiff's motion for entry of clerk's default when no return of service that shows proper service upon the corporate defendant was filed
Summary of this case from Phx. Entm't Partners, LLC v. Entcom, Inc.Opinion
Case No. 3:08-cv-683-J-12MCR.
October 29, 2008
ORDER
THIS CAUSE is before the Court on Plaintiff's Motion for Entry of Default by Clerk Against Defendant, Sai Deva Corporation d/b/a Stop Save (Doc. 8) filed August 25, 2008.
Plaintiff asks the Court for entry of a default by the Clerk pursuant to Rule 55(a) of the Federal Rules of Civil Procedure against Defendant, Sai Deva Corporation d/b/a Stop Save. Rule 55(a) provides for the entry of a default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." An order for entry of default is within the discretion of the Court. Marschhauser v. Travelers Indemnity Co., 145 F.R.D. 605, 610 (S.D. Fla. 1992). In order to obtain entry of a clerk's default, a plaintiff must first effect service of the summons and the complaint properly on the defendant within 120 days of the filing of the action as required by Rule 4(m). See Maryland State Firemen's Ass'n v. Chaves, 166 F.R.D. 353, 354 (D. Md. 1996) (finding that "service of process must be effective under the Federal Rules of Civil Procedure before a default . . . may be entered against a defendant.") (citations omitted). Upon review of the Court record, the Court notes that no summons was issued nor was a return of service filed showing that Defendant, Sai Deva Corporation d/b/a Stop Save, was ever properly served. In the instant motion, Plaintiff merely states that Defendant was lawfully served on August 1, 2008 and cites to docket entry 4. Docket entry 4 is the Court's Interested Person's Order. Plaintiff makes no other argument, and did not attach or incorporate by reference a copy of the Return of Service or any other document to show proper service. As such, a clerk's default may not be entered.
Accordingly, after due consideration, it is
ORDERED:
Plaintiff's Motion for Entry of Default by Clerk Against Defendant, Sai Deva Corporation d/b/a Stop Save (Doc. 8) is DENIED without prejudice.
DONE AND ORDERED in Chambers in Jacksonville, Florida.