Opinion
Case No. 2:10-cv-552-FtM-29SPC.
October 27, 2010
ORDER
This matter comes before the Court on Plaintiff's Motion for Clerk's Default (Doc. #9) filed on October 25, 2010. The Plaintiff filed a Complaint against Defendant, Hollywoods Family Fun Center, Inc., on September 4, 2010. The Complaint was served by a certified process server, Kris Reber, on September 10, 2010. (Plaintiff's Exhibit #1 — The Return of Service). According to the return of service, process was to be served on Deborah Bickle, registered agent at 6780 N. Airport Rd., Naples, FL 34109. The service was attempted at 11:33 am at 6780 N. Airport Rd., Naples, FL 34109, during which time neither the registered agent, nor any corporate officers were present on the premises. Substitute Service was effectuated upon John Doe, a manager for the Defendant, on September 10, 2010. Pursuant to Federal Rule of Civil Procedure 12(a)(1)(A), a responsive pleading from the Defendant was due 21 days after the service, or on October 1, 2010. As of October 25, 2010, the Plaintiff has not received an answer to the Complaint and requests this default.
Process server failed to obtain the name of the Manager due to Manager's refusal to state his name. Process server did note a description of the person served: Age 45, white male, height 5' 11, weight 160, Hair grey, and no glasses.
The entry of a default is appropriate "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise." Fed.R.Civ.P. 55(a). Florida Statute § 48.081 provides that "if service cannot be made on a registered agent because of failure to comply with § 48.091, service of process shall be permitted on any employee at the corporation's principal place of business or on any employee of the registered agent. Fla. Stat. § 48.081(3)(a) (2010). Florida Statute § 48.091 requires that a corporation have a registered agent available to receive service of process at the registered office from "10:00 a.m. to 12 noon each day except Saturdays, Sundays, and legal holidays." Fla. Stat. § 48.091(2) (2010).
The Plaintiff has the burden to prove that the corporation violated § 48.091, by not having a registered agent present at required times. Dienes v. U.S. Alliance Management Corp., 955 So.2d 1187, 1188 (3d Fla. Dist. Ct. App 2007). In this case, the return of service indicated the date, September 10, 2010, which was a Friday at 11:33a.m. This is during the time a registered agent is required, by § 48.091, to be present. There were no other corporate officers present on the premises during the time of service. As substitute service, and in compliance with § 48.081, the process server effectuated process upon a manager present at the same address listed for the registered agent. This court finds the Plaintiff has met its burden. A manager, although unnamed, working at the same address as the registered agent is sufficient to serve process upon the Defendant.
A responsive pleading was due on or about October 1, 2010. To date, there has been no responsive pleading, with respect to the Complaint, from Defendant, Hollywoods Family Fun Center, Inc. Therefore, the entry of clerk's default is appropriate at this time.
Accordingly, it is now
ORDERED:
Plaintiff's Motion for Clerk's Default (Doc. #9) is GRANTED. DONE AND ORDERED at Fort Myers, Florida, this 26th day of October, 2010.